YADAV, J. - (1.) THE instant revision petition has been filed against the order passed by learned District Judge, Udaipur dated 5. 4. 1994 setting aside the order passed by Munsiff and Judicial Magistrate, First Class, City North, Udaipur dated 24. 3. 94 and thereby allowing the application of the defendant non petitioner dated 4. 11. 1991 moved by him under O. 9, R. 13 CPC, for setting aside the ex parte decree dated 10. 10. 1991 passed in favour of the plaintiff revisionist.
(2.) THE learned trial court passed an order to proceed ex parte against the defendant non petitioner on 3. 10. 1989. THE defendant non petitioner moved an application for setting aside the aforesaid order to proceed ex parte against him on 27. 10. 1989 which was dismissed in default on 27. 11. 1989. THE defendant revisionist thereafter moved a fresh application under O. 9 R. 7 CPC on 4. 9. 1990 but the same was rejected by the learned trial court on 20. 11. 1990. Dissatisfied with the order dated 20. 11. 1990 rejecting the fresh application under O. 9 R. 7 CPC, the defendant non petitioner filed an appeal on 30. 11. 1990. The appeal so filed by the defendant non petitioner was rejected on 18. 9. 1991 holding that it was not maintainable. Against the order of rejection of his appeal dated 18. 9. 1991, the defendant non petitioner filed a revision under Sec. 115 CPC within limitation. However, it appears that during the pendency of the aforesaid revision the original suit itself was decreed ex parte on 10. 10. 1991. The defendant non petitioner, in order to save the period of limitation, moved an application under O. 9 R. 13 CPC. The learned counsel for the revisionist in the aforesaid revision brought the aforesaid peculiar facts to the notice of the Court and the learned Single Judge of this Court on the basis of the aforesaid statement dismissed the revision on 3. 2. 1992 with an observation that the defendant non petitioner (the petitioner in the aforesaid revision) would be at liberty to raise all the points in subsequent proceed-ings in accordance with law. The application under O. 9 R. 13 CPC which was pending decision uptil 3. 2. 1992 was dismissed by the learned trial court on 24. 3. 1994 but on an appeal preferred by the defendant non petitioner the order of the learned trial court was set aside by the lower appellate court on 5. 4. 1994 as stated in preceding paragraph of this order. Against the order of reversal passed by the lower appellate court on 5. 4. 1994 and thereby allowing the application of the non petitioner under O. 9, R. 13 CPC, the plaintiff revisionist has filed this revision which is posted today for final hearing. I have heard the learned counsel for the parties and carefully gone through the orders passed by both the courts below. The contention of the learned counsel for the plaintiff revisionist is that in support of the order impugned the learned lower appellate court has not assigned any logic or reason which would justify his correct approach in setting aside the ex parte decree dated 10. 10. 91. On the contrary, according to him as a matter of fact the defendant non petitioner failed to establish any sufficient or plausible cause for his non appearance, therefore, the learned trial court has committed no jurisdictional error in rejected the application filed by him under O. 9, R. 13 CPC. The learned counsel for the plaintiff revisionist vehemently contended that unless reasonable and sufficient cause for his non appearance before the Court when the order to proceed ex parte was passed is shown by the defendant revisionist, the ex parte decree passed on 10. 10. 91 by the learned trial court cannot be set aside as a matter of course. It is also vehemently contended by the learned counsel for the plaintiff revisionist that the expression "called on for hearing" used under O. 9, R. 13 CPC includes within its fold the meaning the date on which the order to proceed ex parte was passed against the defendant non petitioner.
(3.) THE aforesaid argument raised on behalf of the plaintiff revisionist is refuted by the learned counsel appearing on behalf of defendant non petitioner. It is argued by the learned counsel for the defendant non petitioner that once the learned lower appellate court satisfied with the cause shown by the defendant non petitioner for his absence on the date when the case was called on for hearing and set aside the order to proceed ex parte against him dated 10. 10. 91, it is the result of his positive exercise of discretion which this Court in its revisional jurisdiction should not interfere unless such exercise of discretion is demonstrated to be wholly or completely untenable, arbitrary, per verse and based on non existent ground. In support of his aforesaid contention he placed reliance on the decision rendered by the Apex Court in the case of N. Balakrishnan vs. M. Krishnamurthy (1 ). However, it is conceded by the learned counsel for the defendant non petitioner that after the ex parte proceedings culminated in passing the ex parte decree, then the defendant non petitioner who is desirous of getting the ex parte decree set aside under Order 9, Rule 13 CPC must show sufficient cause for his non appearance on the date when the exparte decree was passed no matter whether he succeeded in showing sufficient cause for his non appearance on earlier date or not. In this regard reliance is placed by the learned counsel for the non petitioner on a decision rendered by a learned Single Judge of this Court in the case of Radhey Shyam vs. Mst. Lalli and Others I have given my most anxious consideration to the rival contentions raised at the Bar. I am of the view that the defendant non petitioner against whom the ex parte decree was passed on 10. 10. 1991 was only required to show the sufficient cause for his non appearance when the suit was called on for hearing as contem-plated under O. 9, R. 13 CPC. If an ex parte proceeding is initiated against a defendant and he wants to get such proceeding set aside then he has remedy under O. 9, R. 7 CPC. But after the ex parte proceeding culminated in passing an ex parte decree then the defendant desirous of getting the ex parte decree set aside under O. 9, R. 13 CPC is required to show sufficient cause for his non appearance on the date when the ex parte decree was passed. The principle of merger is extendable in such cases. To my mind an order to proceed ex parte against a defendant automatically merges into an ex parte decree. Even if the defendant succeeded to show sufficient cause for non appearance on the date when an order to proceed ex parte against him was passed, the ex parte decree cannot be set aside unless sufficient cause for the absence of the defendant on the date when the case was called on for hearing resulting in passing of the ex parte decree is shown. My aforesaid view is buttressed from the phraseology used under O. 9, R. 7 CPC and under O. 9, R. 13 CPC. A close scrutiny of O. 9, R. 7 CPC reveals that for setting aside an order to proceed ex parte against a defendant, the defendant is required to appear on the next day of hearing and if he succeeds to show a good cause for his previous non appearance such order to proceed ex parte against the defendant can be set aside whereas for setting aside ex parte decree under O. 9, R. 13 CPC, the defendant is required to show sufficient cause which prevented him to appear when the suit was called on for hearing. ;