Norman Macleod, C.J.
1. The petitioner had tiled Suit No. 1991 of 1923 in the Small Cause Court, Poona, against the opponent. Three days after, the opponent filed Suit No. 2141 against the petitioner in the same Court. Both suits were fixed for hearing on July 27, 1923. When the opponent's suit was called on neither the petitioner nor his pleader nor his Gumasta were present, and accordingly an ex parte decree was passed. The opponent and his pleader were still in Court to defend the petitioner's suit when the petitioner's Gumaata and his pleader arrived in Court and asked that the ex parte decree should be set aside and the suit restored to the file, upon which the Court said that the matter would be considered on a proper written application being made, and the petitioner's suit was adjourned. An application for setting aside the ex parte decree was made on July 28, 1923, and the matter was adjourned, till August 30, when the Judge dismissed the application. We have more than once laid down that even supposing a party is absent when the suit is called on for hearing, if he appears in Court before the Court has risen for the day, then the Court should listen to his application for having his suit restored. If the opponent has left the Court, then the opponent should have notice, but if the opponent is present in Court, then it is the duty of the Judge to dispose of the application at once. The mere fact that a party or his pleader has arrived in Court after the proper hour when the suit has been disposed of ex parte, is no reason whatever why the suit should not be restored to the board and the case heard on its merits, the Court imposing such conditions on the defaulting party as might meet the justice of the case. We must not be taken as in any way encouraging unpunctuality. But in cases like this one the dismissal of the suit is a penalty, out of all proportion to the offence.
2. The rule, therefore, will be made absolute and the case returned to the lower Court for disposal on the merits. No order as to costs of this application. The decree will be set aside and the costs in the lower Court will be costs in the cause.