SHARMA, J. - (1.) ON 2. 6. 1997, the petitioner filed an application u/o. 9 R. 13 CPC before the learned Additional Civil Judge (Senior Division ) No. 2 Jaipur District Jaipur seeking quashing of the ex-parte decree dated 28. 11. 1995 on the ground that he never instructed Shri Surendra Singh Shekhawat Advocate to appear on his behalf, but the advocate filed his vakalatnama on 17. 1. 1991 on behalf of the petitioner in the suit instituted by the plaintiff-respondent. It was also averred that Shri Surendra Singh Shekhawat Advocate did not appear in the suit and the suit proceeded ex-parte on 27. 8. 1993. The petitioner came to know for the first time on 1. 6. 1997 that ex parte decree in the suit was passed against the petitioner on 28. 11. 1995. Under those circumstances the petitioner prayed that the ex-parte dec-ree deserves to be set aside. The learned Additional Civil Judge dismissed the application vide order dated 12. 7. 1999. The petitioner preferred appeal against the said order U/o. 43 R. 1 CPC. The learned Additional District Judge No. 2 Jaipur District Jaipur vide judgment dated 9. 8. 1999 dismissed the appeal. The concurrent findings of the Courts below have now been assailed in the instant revision by the defendant-petitioner.
(2.) MR. Sudhanshu Kasliwal, learned counsel appearing for the petitioner at the outset submitted that the allegations levelled against counsel Sarva Shri Surendra Singh Shekhawat and Bhargirath Singh Shekhawat be treated as abandoned. An application duly signed by the petitioner supported by his affidavit has also been filed before this Court by the learned counsel which has been kept on record. The only contention of the learned counsel is that the petitioner has no knowledge about ex-parte proceedings and ex-parte decree. It was the duty of the counsel of the petitioner to appear continuously on behalf of the petitioner in the suit or if he did not want to appear he ought to have informed the petitioner but without such information the ex-parte proceedings and the ex-parte decree passed against the defendant-petitioner deserve to be set aside. Reliance was placed on Smt. Gayatri vs. Mahaveer Prasad (1), Tahil Ram Issardas Sadarangani & Ors. vs. Ram Chand Issardas Sadarangani & Anr. (2), Malkiat Singh & Anr. vs. Joginder Singh & Ors. (3), Smt. Lachi Tewari & Ors. vs. Director of Land Records & Ors. (4), Bank of India vs. M/s. Mehta Brothers & Ors. (5) & L. Naik Mahabir Singh vs. Chief of Army Staff On the other hand, Mr. B. S. Shekhawat, learned counsel appearing for the plaintiff respondent supported the impugned judgments and placed reliance on Jagdish Lal vs. Madan Lal (7), State vs. Mangi & Ors. (8) and Radha Mohan Dutta Silk Merchant vs. Abbas Ali Biswas & Ors. I have reflected over the rival submissions and carefully scanned the material on record as well as the case law cited before me. A look at the provisions contained in O. 9, R. 13 CPC demonstrates that the petitioner can seek to set aside ex-parte decree on the ground that he was prevented by any sufficient cause from appearing when the suit was called on for hearing and when the final decree was passed O. 9, R. 13 CPC sets out two alternative grounds for having the ex-parte decree set aside. The applicant can satisfy the Court that (1) the summons was not duly served; or (2) he was prevented by any sufficient cause from appearing when the suit was called on for hearing. In the instant case as counsel Shri Surendra Singh Shekhawat filed vakalatnama on behalf of the petitioner in the Court it will be presumed that summons was served upon him. Though in the application the petitioner has averred that he never instructed Shri Surendra Singh Shekhawat to appear on his behalf but as the petitioner has abandoned this argument, I proceed to consider only the second aspect as to whether the petitioner was prevented by any sufficient cause from appearing when the suit was called on for hearing. At the same time I have also to consider the argument raised by Mr. B. S. Shekhawat, learned counsel appearing for the plaintiff-respondent in the light of the Full Bench Judgment of the Allahabad High Court in Radha Mohan vs. Abbas Ali (supra) as to whether it will be presumed after appearance of the counsel for the petitioner in the suit that he was proceeded ex-parte. The Full Bench of the Allahabad High Court in Radha Mohan vs. Abas Ali (supra) indicated that where some of the defendants were represented by a pleader who presented an application for examination of witnesses on commission, which was rejected by the Court as being unnecessary, and therefore the pleader withdrew as having no instructions to proceed with the case, and the case proceeded on merits, decreeing the claim, against the defendants, the suit could not be said to be decided ex-parte.
(3.) A look at the proceedings of the trial Court reveals that the suit came to be instituted by the plaintiff-respondent on 16. 1. 1991. On 17. 1. 1991 Shri Surendra Singh Shekhawat Advocate filed his vakalatnama on behalf of he petitioner. On April 15, 1993, an application was filed by the plaintiff to delete the name of the defendant No. 1 Shri Gopal Sharma and name of Shri Gopal Sharma, defendant No. 1 was accordingly deleted from the plaint. The advocate Shri Surendra Singh Shekhawat, continuously appeared before the Court on behalf of the petitioner. The case thereafter transferred to the Court of Munsif and Judicial Magistrate Jaipur District Jaipur. On 29. 7. 1993 counsel Shri Surendra Singh Shekhawat appeared before the Court and the case was posted for filing written statement on 27. 8. 1993 and on 27. 8. 1993 the defendant and his advocate did not appear before the Court and the defendant-petitioner was proceeded ex parte. Thereafter the case was ad-journed from time to time and ultimately vide judgment and decree dated 28. 11. 1995 the suit of the plaintiff-respondent was decreed. A further look of the record also goes to show that on 17. 1. 1991 an application was filed on behalf of the petitioner for appointment of Commissioner. The said application was duly signed by the petitioner Dikshant Sharma as well as his counsel Shri Surendra Singh Shekhawat. Reply to the application u/o. 39 Rr. 1 & 2 CPC was also filed on behalf of the petitioner-Dikshant Sharma on 19. 1. 1991 duly signed by the petitioner and affidavit attested by Oath Commissioner was also annexed with the reply. In support of the application u/order 9, Rule 13 C. P. C. the petitioner exa-examined himself and he admitted his signatures on vakalatnama, application seeking appointment of Commissioner, reply to the application u/o. 39 Rr. 1 & 2 CPC and also on affidavit. ;