Restoration of ex parte decree challenge where absence was not deliberate and merits should be heard with costs.

The High Court of Bombay held that an ex parte decree could be set aside where the defendant's absence after transfer of the suit did not show deliberate abandonment of the defence. It doubted whether counsel's authority continued after the transfer, and held that any negligence by the party or advocate should not, by itself, deprive a litigant of a hearing on the merits when compensatory costs can address prejudice. The Court therefore interfered in revision, restored the suit for decision on merits, and made the relief conditional on payment of costs, engagement of counsel, and prompt compliance with directions.

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Issues: Whether the ex parte decree should be restored and the suit reopened for hearing on merits despite the defendant's absence after transfer of the case and the alleged lapse in pursuing representation.

Analysis: The Court held that the dismissal of the application and the affirmation of the ex parte decree were unduly harsh on the facts. It expressed doubt about the continued authority of counsel after transfer of the suit to another court, and in any event found that the defendant had not been shown to have deliberately absented himself or abandoned the defence. The Court took the view that negligence, if any, by the party or advocate should not by itself defeat an opportunity to contest the suit on merits, especially where compensatory costs can be imposed. The Court accordingly interfered in revision and restored the matter subject to payment of costs and compliance with directions to engage counsel and proceed expeditiously.

Conclusion: The ex parte decree was set aside and the suit was restored for decision on merits, subject to payment of costs and other conditions imposed by the Court.

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