1. The petitioner has filed a petition under Order IX Rule 13 of the Code of Civil Procedure, alleging that the respondent had filed, a suit against him for recovery of money in O.S.No. 94/1977 and that in pursuance of the service of summons on him he appeared in Court and it was only on 13-10-1977 that he was supplied with the copy of the plaint. From 13-10-1977 it was adjourned to 15-11-1977 for filing the written statement. Again, it was adjourned to 15-12-1977 for written statement. As he did not appear on that day, he was placed ex parte. It was adjourned to 9-1-1978 for plaintiff's evidence. On 9-1-1978 it was adjourned to 17-1-1978, at the instance of the plaintiff for ex parte evidence. Again, on 17-1-1978, it was adjourned to 25-1-1978 for plaintiff's evidence. On that day, the plaintiff lead the evidence and the trial Court decreed the suit on 15-1-1978.
2. According to the petitioner, his father was ill and he had the problem regarding the delivery of daughter-in-law and he himself was ailing during the period from 11-1-1978. Thus, he alleged that there were sufficient grounds for him to remain absent from 11-1-1978 to 27-2-1978. Thus, he filed the petition for setting aside the ex parte decree.
3. The plaintiff-opponent resisted the petition.
4. Both the Courts below have concurrently found that the defendant -revision petitioner had got sufficient cause to remain absent from 11-1-1978 to 27-2-1978. These concurrent findings recorded by the Courts below are well substantiated by the material on record and they do not need any interference at all.
5. Learned Counsel Sri Srinivasan urged that when the matter is set down for ex parte hearing, it is not necessary for the revision petitioner-defendant to show cause as to why he remained absent on 15-12-1977 or on other previous dates. According to him, if the revision-petitioner shows sufficient cause for his absence on the date when the matter was set down for ex parte hearing, it would amount to a sufficient cause within the meaning of O. 9 R. 13, C.P.C. and when sufficient cause is shown for the absence on the day when the matter was set down for ex parte hearing, the ex parte decree should be set aside.
6. Sri Gopal learned counsel for the respondent plaintiff, made available to me the certified copy of the order-sheet. it shows that the summons which was issued to the defendant and was returnable by 2-4--1977 was not returned and the case was called on 4-4-1977. The summons had not been served even on 4--4--1977. On 4--6-1977 it was found that the defendant is served with summons by affixture of the same on his house. As that was not sufficient fresh summons was ordered and was returnable by 8-7-1977. On 8-7-1977 the summons sent by registered post was served on the defendant. But the Judge was on leave on that day. Hence, the case was adjourned to 2-8-1977. On 2-8-1977, the defendant appeared through his lawyer Shri MSS and prayed for time on the ground that he had not received a copy of the plaint. It was adjourned to 31-8-1977, for supply of copy of the plaint to the defendant. As no copy was supplied even on 31-8-1977, the case was adjourned to 24-9-1977. As the judge was on leave on that day, the case was adjourned to 13-10-1977. It is only on 13-10-1977 that the copy of the plaint was furnished to the defendant and the case was adjourned for filing the written statement of the defendant to 15-11-1977. Again, on 15-11-1977, the revision-petitioner-defendant sought for time for filing the written statement and at his request the case was adjourned to 15-12-1977 for the written statement of the defendant. On 15-12-1977, the defendant and his counsel were absent and the written statement was not filed. Hence, the Court set ex parte of the defendant and adjourned the case to 9-1-1978 for the ex parte evidence of the plaintiff. On the same day a memo appears to have been filed by the learned counsel for the defendant requesting the Court to note his appearance. On 9-1-1978 the Court found that defendant and his counsel were not present. It also found that the plaintiff and his counsel were also not present on that date. However, the Court itself adjourned the matter for plaintiffs evidence to 17-1-1978. On 17-1-1978, the matter was adjourned to 25-1-1978 for the evidence of the plaintiff. On that day, the plaintiff examined himself as P. W. 1 and got marked Ex. P. 1 to P. 5 and the Court decreed the suit.
7. I have referred to the said order-sheet in detail in order to show that even the plaintiff and his counsel were not present on 9-1-1978. O. 9 R. 8 of the Code of Civil Procedure, clearly lays down that if the plaintiff does not appear when the suit is called on for hearing the Court shall make an order that the suit be dismissed. Notwithstanding that the Court suomotu adjourned the suit to the next date. This order made by the Court, adjourning the matter from 9-1-1978 to 17-1-1978, itself suffers from serious illegaility.
8. Learned counsel Sri Gopal urged that the revision petitioner-defendant had failed to show that there were sufficient grounds for him to remain absent before the Court on 15-11-1977 and 15-12-1977 and thus though he might have shown sufficient grounds for his absence from 11-1-1978 to 27-2-1978, the defendant was not entitled to get the ex parte decree set aside.
9. Order IX R. 13 reads as:
'In any case in which a decree is passed ex parte against a defendant, hib may apply to the Court by which the decree was passed for an order to set aside and if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.'
Therefore, what the revision-petitioner defendant should show is that he had got sufficient cause to remain absent on the date when the matter was set down for ex parte hearing. Therefore, it is not necessary for him to show cause as to why he had remained absent on the dates like 15-11-1977and 15-12-1977. In short, the revision petitioner-defendant has to satisfy the Court that he had sufficient cause for his non-appearance on the date when the suit was actually called for hearing and when the evidence of the plaintiff was recorded. He need not show sufficient cause for his remaining absent on the date when he was actually marked ex parte by the Court which was seized of the matter.
10. It is not necessary for the revision petitioner to show that he was diligent all throughout and that his conduct was not blameworthy. Similar is the view taken by Mannan Subba Rao v. K. Poliah Naidu (1975) 2 Andh WR 471. Therefore, both the Courts below unnecessarily went at a tangent while dismissing the petition on the ground that the revision petitioner-defendant had failed to show sufficient cause for his non-appearance even on 15-11-1977 and 15-12-1977, when he was set ex parte.
11. As already stated above, the matter was set down for ex parte hearing finally on 25-1-1978. Both the Courts have concurrently held that the revision petitioner-defendant has shown sufficient ground for his nonappearance for the period from 11-1-1978 to 27-2-1978. Therefore, in view of these concurrent findings, it will have to be held that there were sufficient grounds for the revision-petitioner-defendant to remain absent on 25-1-1978 when the suit was decreed ex parte.
12. Therefore, under the circumstances, the order passed by the Trial court and the order passed by the Lower Appellate Court affirming the order passed by the trial Court are set aside. The revision is allowed. The suit is restored to file. No costs in this revision.
13. Both the advocates are directed to keep their clients or their local advocates present in the Court of the Principal Civil Judge, City Civil Court, Bangalore, on 5-3-1985, in order to receive further instructions in the matter.
14. The defendant should file his written statement without fail on 5-3-1985. The Principal City Civil Judge may either himself try the suit or may make over the suit to any one of the additional Judges for disposal.
15. Order accordingly.