JUDGMENT N.N. Mithal, J. - This appeal is directed against an order rejecting the application moved under Order 9, Rule 13, CPC Primarily on the ground that the conduct of the defendant appellant as not above board inasmuch as he has been adopting dilatory tactics for prolonging the trial of the suit and also for the reason that the grounds given in the application did not appear to be correct. 2. A suit for recovery of approximately Rs. 1,25,000/- was brought against the appellant in 1986. The order of the Court below mentioned that on many occasionsex-parfeorders were passed against the defendant which were recalled on his application. Ultimately 2.11.1988 was the date fixed to framing the issue. On that date neither the defendant nor his counsel appeared till about 12.45 p.m. At the stage, the Court passed an order directing the suit to proceedex-parteand the plaintiff was ordered to prove his case by affidavit. The affidavit was shown at about 2.45 p.m. the same day. The Court fixed 5.11.1988 for judgment which was duly pronounced on that date decreeing the suit ex-parte. The defendant moved an application under Order 9, Rule 13, C.P.C. only on 3.12.1988 on the ground that he along with his counsel were proceeding for Moradabad to Rampur by car which failed on the way due to some defect in the engine which could not be set right despite vigorous efforts. Ultimately they had to return back to Moradabad and they again proceeded from Moradabad to Rampur and could reach the Court only at about 1.30 p.m. According to the appellant he as informed by the Reader of the Court that the matter has been heardex-pcirteand 5.11.1988 has been fixed for delivery of judgment. For this reason no application for recall of the order could be moved that day. 3. The Trial Court, on a consideration of the entire material before it, came to the conclusion that the conduct of the appellant as not bona fide. He also found that the allegation that the counsel and the defendant-appellant had reached the Court at 1.30 p.m. on 2.11.1988 appear to be incorrect inasmuch as the ex-parteproceedings were concluded only after 2.45 p.m. when the affidavit sworn by the plaintiff was filed in Court. 4. He also found that the allegation that the counsel and the defendant-appellant had reached the Court at 1.30 p.m. on 2.11.1988 appear to be incorrect inasmuch as the ex-parteproceedings were concluded only after 2.45 p.m. when the affidavit sworn by the plaintiff was filed in Court. 4. We have heard the learned counsel for the parties at length and we do not find ourselves in agreement with the view of the Trial Court. As far as the previous conduct of the appellant is concerned, it should not have been the sole criteria for deciding the application under Order 9, Rule 13, C.P.C. though certainly the previous background could be kept in mind by the Court in believing or not believing the version of the appellant. It has been pointed out that out of the three occasions henex-parteorders were passed earlier, on two occasions, noex-partedecree was passed and the appellant had appeared before the Court and pointed out the mistake in the order and that the defendant was not at fault on those occasions. The appellant, however, admits that on the third occasion, certainlyex-partedecree was passed as he had failed to appear on account to illness. According to him, that was the only occasion when he had actually defaulted in appearing in Court and that too on account of his illness. It is submitted that the earlier orders should not be taken as an adverse circumstance against the defendant's conduct. Earlier ex-parte orders andex-partedecree had been set aside, they lose much of their importance except for a limited purpose. 5. As for the correctness of the version of the defendant, we do not find any real contradiction in the stand taken by him. The counsel and the defendant had reached the Court only by 1.30 p.m. and on enquiry from the reader were told thatex-parteorders have already been passed and the judgment will be pronounced on 5.11.1988. If this be true then certainly the defendant was not entitled to make any application for recall of the order before 5.11.1988. It is true that there was some delay in making the application under Order 9, Rule 13, C.P.C. and the defendant, for unknown reasons, waited till 3.12.1988. However, the application being within time the appellant cannot be faulted on this ground and this fact may be taken as a minor circumstance against him. It is true that there was some delay in making the application under Order 9, Rule 13, C.P.C. and the defendant, for unknown reasons, waited till 3.12.1988. However, the application being within time the appellant cannot be faulted on this ground and this fact may be taken as a minor circumstance against him. It would have been certainly better if the defendant had sworn an affidavit on 2.11.1988 itself and then waited till 5.11.1988 to move the necessary application under Order 9, Rule 13, C.P.C. but merely because he had not done so cannot be taken as a circumstance against him. Apart from this, the counsel who appeared for the defendant himself filed his own affidavit about the failure of the engine of the car while on way to Rampur and also about the fact that he along with the defendant had reached the Court at about 1.30 p.m. We do not think that the Advocate's statement should be brushed aside easily. In fact the statement of the Advocate should be given due weight unless there are compelling circumstances not to rely on it. There is another angle from which the case can be looked into. 2.11.1988, was a date fixed only for framing issues. The Court was not competent to proceed to hear the case on the same date. If the defendant was absent, the only course open for the Court as to fix a date For ex-parte hearing of the case instead of proceeding to record the evidence on the same date. 6. Having given careful thought to the facts and circumstances of this case, we are of the opinion that the appeal should succeed. We accordingly allow the appeal but in view of the previous conduct, the defendant is directed to pay Rs.500/- within a period of three weeks from today to the plaintiff as cost of setting aside thatex-par/edecree. Should the appellant fail to pay or deposit or amount within the said period, the appeal shall stand dismissed. We make no order as to costs. 7. Before parting with this appeal, however, we would like to mentioned that during the argument Shri P.N.Saxena for the appellants gave a solemn undertaking that the appellant will not cause any delay in the trial of the suit and will extend fullest cooperation in the expeditious disposal of the suit. We make no order as to costs. 7. Before parting with this appeal, however, we would like to mentioned that during the argument Shri P.N.Saxena for the appellants gave a solemn undertaking that the appellant will not cause any delay in the trial of the suit and will extend fullest cooperation in the expeditious disposal of the suit. In view of this e direct the trial Court to dispose of the suit in a expeditious manner. It will be open to the trial Court to obtain statement of account from the parties according to their respective version and if there is any admitted amount payable by the appellant to the plaintiff-respondent it will also be open to Court below to make a direction for the payment of the same within such time as it may deem proper.