CHAUHAN, J. - (1.) THE appellant is challenging the order dated 3. 1. 2001 passed by the Additional District Judge No. 4, Kota whereby the learned Judge has dismissed the application under Order 9 Rue 13 Civil Procedure Code (henceforth, to be referred to as `the Code', for short) for setting aside the ex-parte decree dated 11. 9. 1998.
(2.) THE brief facts of the case are that the plaintiff- respondent had filed a suit for recovery of money against the defendant-appellant. THE suit was fixed for appellant's evidence on 18. 8. 1998. However, on that day, the lawyers at Kota were on strike. THErefore, Mr. V. N. Singh, the authorized representative appeared before the court and the next date was assigned was 4. 9. 1998. But inadvertently Mr. V. N. Singh informed his counsel that the next date in the case is 8. 9. 1998. Hence, on 4. 9. 1998 when the case was taken up, neither the counsel nor the authorized representative appeared before the learned Court. THErefore, on 4. 9. 1998 an ex-parte proceedings commenced against the defendant and on the next date i. e. 11. 9. 1998, the suit was decreed as ex-parte. Immediately, on 16. 9. 1998 the appellant moved an application under Order 9 Rule 13 of the Code. Hence, the said application was moved in a short span of five days. According to the affidavit of Mr. V. S. Singh, he could not appear before the Court on 4. 9. 1998 as he was suffering from fever. In fact, in order to inform the court, he had sent a telegram. However, the said telegram was received on 7. 9. 1998. After hearing both the parties, vide order dated 3. 1. 2001 the learned Judge dismissed the said application. Hence, this appeal before this Court. Every person has a right to be heard. Such a right not only flows out of the principle of natural justice, but also eminents from Article 21 of the Constitution of India. The right of hearing is an integral part of the right to life and right to personal liberty. Such a right can only be deprived by a procedure established by the law. Under Order 9 Rule 6 of the Code, where the plaintiff appears and defendant does not appear when the suit is called for hearing and if it is proved that the summons were duly served, the court has the power to hear the case ex-parte. Thus, in case the defendant does not appear after receiving the summons, the court is entitled to proceed ex-parte against him. According to Order 9 Rule 7 of the Code in case the defendant, for his previous non-appearance, shows good cause, then the right to contest the suit may be restored. In case, an ex-parte decree has been passed against the defendant under Order 9 Rule 13 of the Code, a right has been given to the defendant to seek setting aside of the ex-parte decree provided sufficient cause for his absence is placed before the Court. The Court is further empowered to impose cost as it thinks fit before setting aside the ex-parte decree. While setting aside an ex-parte decree, the court has to balance the conflicting interest of the defendant as he has a right to be heard, and to the plaintiff who has a right to claim that the case has been finally decided in his favour and a finality has to be attached to the said judgment and decree. Since an onerous responsibility has been imposed on the court, the court should not dismiss an application under Order 9 Rule 13 of the Code, in a mechanical manner. The court should be sensitive to the right of the defendant, to his social and educational background to be able to understand the intricacies of the legal procedure, to his conduct after passing of the decree. In case, the court has reasons to believe that the defendant has been avoiding the proceedings intentionally, or he has been lethargic in defending his case, or there has been an inordinate delay in submitting an application under Order 9 Rule 13 of the Code, then the court would be justified in dismissing the application under the said order. However, in cases where the litigant is poor and illiterate, where he is unaware of the complexity of the judicial process, where he has been assured by the advocate that he will be informed, but no such information was ever sent, or where he has been vigilant to immediately approach the court after coming to know about the ex-parte decree, in such cases, the court should be liberal enough to set aside the ex-parte decree. The provisions for imposing a cost upon the defendant, in order to balance the interest of the plaintiff, should also be invoked by the court. The situations enumerated above are, of course, merely illustrative and not exhaustive of the situations. Each case, certainly, has to be decided on the peculiar facts and circumstances of that case, but considering the fact that the right of hearing evolves from the principle of natural justice and originates from Article 21 of the Constitution of India, a liberal spirit should be exercised by the trial Court. In case the trial Court is satisfied that the interest of the plaintiff should be protected, it is empowered to impose a cost, even an exemplary cost on the defendant. Such a power should be exercised in appropriate cases. A narrow exercise of the powers under Order 9 Rule 13 of the Code is flooding the High Court. Since it is a matter which can be decided by the Subordinate Judiciary, the tide of litigation coming to the High Court against the orders of rejection needs to be stemmed by all concerned. In the present case, the defendant had applied to the court within five days of coming to know about the ex-parte decree. Thus, it was vigilant about its interest. Considering the fact that on 18. 8. 1998 and on 4. 9. 1998, the advocates in Kota were on strike, there is a sufficient reason for non-appearance of the lawyer on behalf of the defendant-appellant. Since to err is human, the fact that a wrong date had inadvertently been told is not surprising. Since the authorized representative was ill, a telegram had been sent to the concerned court. But the telegram was received on 7. 9. 1998. Thus, the appellant was vigilant about his right, he wanted to follow the progress of the case, but because of inadvertent mistake, because of his illness, because of the strike of the advocates, he could not appear before the court on 4. 9. 1998. On the very next date, on 11. 9. 1998 the ex- parte decree was passed i. e. just after one week. Considering the conduct of the appellant, considering the right of hearing should ordinarily be given, this Court is inclined to quash and set aside the order dated 3. 1. 2001 and to direct the learned court to recommence the trial as it stood on 4. 9. 1998. However, as the interest of the plaintiff should be equally protected, we direct the appellant to pay a cost of Rs. 5000/- to the plaintiff within a period of two weeks from the date of submission of this order before the trial Court. Since the matter has been hanging fire for almost a decade, we direct the trial Court decide this case within a period of six months from the date of receipt of a certified copy of this order. With these observations, this appeal is allowed. .;