JUDGMENT S.R. Bhargava, J. - This appeal is directed against an order dismissing application for setting aside of decree in a suit. 2. Respondent No. 2 Smt. Ganga Devi is daughter of appellant Shanker Lal. Appellant Shanker Lal is resident of village of Tehsil Firozabad, District Agra. Respondent No. 1 Ram Singh filed original suit No. 572 of 1984 in the Court of Civil Judge, Agra for permanent injunction in respect of a piece of land. It is now not disputed that appellant Shanker Lal was served with summons of the said suit by registered A.D. post on 25-2-1985 requiring him to file written statement on 4th March, 1985. From 4th March to 10th March, 1985 court remained closed on account of elections and reopened on 11th March, 1985. On the reopening of the Court when written statement of defendant appellant Shanker Lal was not filed, learned lower Court Judge passed order for proceeding with the suit under Order 8, Rule 5, C.P.C., and fixed 27th March, 1985 for that purpose. On the date so fixed defendant appellant did not appear and the learned lower court decreed* the suit on plaint allegations. 3. On 18th April, 1985 defendant appellant filed application bearing the date of 10th April, 1985 for setting aside of decree dated 27th March, 1985. It was accompanied by affidavit dated 11th March, 1985 and sworn on the same date. In this affidavit defendant appellant mentioned that he enquired from an advocate at Ferozabad and he was given to understand that another date would be fixed and for next date another summon would be issued. Defendant appellant further swore in the affidavit that he is an aged man suffering from asthma and has not been keeping good health with the result that soon after the election and holidays from 4-3-85 to 10-3-85 he could not come to Agra and enquire about the next date fixed or collect any other information regarding the progress of the suit. He came to know about the decree only on the date of swearing of the affidavit when he got enquiries made from his Advocate Sri U.B. Jain and after inspection of the file that the suit had been decreed on 27th March, 1985. He came to know about the decree only on the date of swearing of the affidavit when he got enquiries made from his Advocate Sri U.B. Jain and after inspection of the file that the suit had been decreed on 27th March, 1985. Lastly defendant appellant swore in the affidavit that summons were not duly served on him because he received only a summons without the copy of the plaint and that too was issued for a holiday. 4. This application was resisted by plaintiff respondent No. 1 who filed counter affidavit. He asserted in the affidavit that defendant appellant had knowledge of the suit but was avoiding service of summons. Ultimately he was duly served with summons on 25-2-85. He could have filed written statement on 11th March 1985. He attached the affidavit filed on behalf of the appellant on the ground that the names of Advocates at Firozabad who are alleged to have misled defendant appellant that fresh summons would be issued for the next date, have not been disclosed. It was the duty of the defendant appellant to file written statement on the reopening of the Court. He further contended that the defendant appellant had no sufficient cause for not finding out the next date or for not appearing on the reopening of the court. He denied that defendant appellant is a patient of asthma. He maintained that he saw the defendant appellant moving at Firozabad during election time in sound health. Even if the defendant appellant had been ill he could have conducted the pairvi through his grown-up sons, two elderly grandsons besides host of relation. He further asserted that defendant appellant was seen in Agra court during March 1985 and first week of April 1985. According to him copy of the plaint was available to the office and there can be no presumption that office did not dispatch copy of the plaint to the defendant appellant. Even if the defendant appellant was not served with copy of the plaint, he could have applied to the Court for copy on the reopening of the court. 5. Learned lower Court held that it was the duty of the defendant appellant to have filed written statement on the reopening of the court. He further disbelieved the case of the defendant appellant that he was misled by an Advocate at Firozabad. 5. Learned lower Court held that it was the duty of the defendant appellant to have filed written statement on the reopening of the court. He further disbelieved the case of the defendant appellant that he was misled by an Advocate at Firozabad. Learned lower Court Judge disbelieved the case of the defendant appellant that he was ill and was prevented from appearing in the court on the date fixed by sufficient cause. Learned lower Court Judge was of the opinion that a mere affidavit of an interested party cannot rebut the presumption of regularity attached to the official acts and it could not be said that in the registered A.D. Cover the copy of the plaint was not sent. With these findings learned lower Court Judge dismissed the application of the defendant appellant for setting aside of decree dated 27th, March, 1985. 6. Being aggrieved defendant has come up in appeal. 7. Parties have been heard and lower Court record has been perused. Learned lower Court Judge disbelieved the defendant appellant on the point that a counsel at Firozabad misled him to believe that a fresh summons would be sent for the next date on the ground that defendant appellant did not disclose the name of the counsel. Presiding Judges of the Courts are expected to act prudently according to their experiences. There can be little hesitation in saying that now there are many who are more interested in stalling progress of suits and proceedings rather than helping in end of justice. It is not necessary for them to look into the old settled law. They thrive in ignorance and by misleading the litigant public. In Full Bench Case of M. Mohammed Jan v. Shyam Lal, AIR 1924 All. 218 . Court accepted the principle of law which parties who are prevented from doing a thing in a Court on a particular day, not by any act of their own, but by the Court itself, are entitled to do it at the first subsequent opportunity. This principle was described as 'generally' recognised principle of law. 8. Every right has a corresponding duty. When the date for filing of written statement was during election holidays defendant appellant was duty bound to file written statement on the day of reopening of the Court after the holidays. This principle was described as 'generally' recognised principle of law. 8. Every right has a corresponding duty. When the date for filing of written statement was during election holidays defendant appellant was duty bound to file written statement on the day of reopening of the Court after the holidays. But in the present atmosphere of falling moral and ethical standard it could not be expected that a Tehsil lawyer would have given correct advice to the defendant appellant who had just made an enquiry about his right to file written statement and had not engaged the said lawyer, when the defendant appellant had not engaged the Tehsil lawyer he could not have known the name of the lawyer. Hence only because the defendant-appellant did not disclose the name of Firozabad lawyer who misled him to believe that he would get fresh summons, cannot be sufficient to disbelieve the defendant-appellant. It is evident that defendant-appellant was misled and honestly believed that he would get fresh summons and that prevented him from filing written statement on 11th March, 1985 or from making enquiry about the next date. Even if all other facts pleaded by the defendant appellant are disbelieved it follows that he had sufficient cause for his absence on 26th March 1985. 9. Then the only question which requires determination in this appeal is whether decision of the suit under Order 8, Rule 5(2), C.P.C., can be considered to result into ex parte decree. By C.P.C., (Amendment) Act, 1976 which came into force from 1-2-1977 sub-rules (2) to (4) were added in Order 8, Rule 5. They run as under:- "(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion require any such fact to be proved. "(3) In exercising its direction under the proviso to sub-rule (1) or under sub-rule (2) the Court shall have due regard to the fact whether the defendant could have, or has engaged a pleader. "(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such decree that shall bear the date on which the judgment was pronounced." 10. "(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such decree that shall bear the date on which the judgment was pronounced." 10. It is evident that sub-rule (2) is only an enabling clause and gives a judicial discretion to the Court. Sub-rale (3) makes it clear that in exercising the discretion the Court should give due regard to the facts whether the defendant could have, or has engaged a pleader. It is obvious that in the instant case defendant appellant had not engaged a pleader. There was no discussion whether he could have engaged a pleader. The 4th March, 1985 fell within election holidays and it was the first date after service of summons on the defendant appellant. In these circumstances it would have been proper for the lower Court to have resorted to procedure laid down in Order 9, C.P.C., instead of sub-rule (2) of Order 8, Rule 5. It is evident that on 11th March 1985 defendant appellant did not appear before the lower court. Then the lower Court should have fixed date for hearing of the suit. At any rate even hearing under Order 8, Rule 5 (2) is hearing contemplated under Order 9, C.P.C. It is evident that on 27th March, 1985 defendant appellant was not present in the Court Hence hearing under Order 8, Rule 5 (2), was ex parte hearing and judgment pronounced on the basis of plaint resulted into an ex parte decree. It could certainly be set aside under Order 9, Rule 13, C.P.C. 11. For the reasons discussed above, the order under appeal cannot be sustained. This appeal must succeed. But defendant appellant must compensate the plaintiff respondent No. 1. 12. Appeal is conditionally allowed. Application under Order 9, Rule 13, C.P.C., shall stand allowed on the condition that within two months hereof defendant appellant deposits cost of Rs. 200/- in the Trial Court which would be paid to the plaintiff respondent No. 1. In case the defendant appellant makes the deposit as directed the ex parte decree dated 27th March, 1985 shall stand set aside. Defendant appellant shall bear his own cost of this appeal. 13. Office shall send back the lower record to the Court concerned within a month. Parties shall appear before the Trial Court on 21-2-1989 when defendant appellant shall file written statement. Defendant appellant shall bear his own cost of this appeal. 13. Office shall send back the lower record to the Court concerned within a month. Parties shall appear before the Trial Court on 21-2-1989 when defendant appellant shall file written statement. Trial Court shall re-register the suit and proceed further according to law after filing of the written statement by the defendant appellant.