1 S.B.CIVIL MISC. APPEAL NO.5312/2008. Suresh Kumar & Orz.VS Durgalal. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL MISC. APPEAL NO.5312/2008. Suresh Kumar and Others. VERSUS Durgalal. 22.05.2009. HON'BLE MR.JUSTICE DALIP SINGH Mr.Sudarshan Laddha, for the appellants. Mr.Atul Jain, for the respondent. ***** This appeal has been filed against the order dated 28.08.2008 passed by the learned Additional District Judge No.2, Bundi by which the application filed by the appellant-defendant under Order 9 Rule 13 C.P.C. for setting aside the ex-parte decree dated 02.06.2007 and the ex-parte order dated 31.05.2007 has been rejected. The grounds mentioned in the application were that on 31.05.2007, the defendant-appellant could not appear on account of the fact that on the aforesaid date there was inclement weather on account of which the appellant could not appear before the court which was in the morning as the courts were functioning at that time from 7:00 AM to 12 Noon. It has also been mentioned that the counsel for the defendant was at that time busy in conducting another case and, therefore, he could not appear at the time when the case was called. It was also submitted that the application was submitted immediately after the summer vacations on 18.07.2007, though there was a 2 S.B.CIVIL MISC. APPEAL NO.5312/2008. Suresh Kumar & Orz.VS Durgalal. delay of few days in filing the said application. I have heard learned counsel for the parties and gone through the impugned order. In the facts and circumstances of the present case, I am of the view that the learned court below has erred in refusing the prayer of the defendant-appellant for setting aside ex-parte order dated 31.05.2007 and the ex-parte decree dated 02.06.2007 which has been passed for damages on account of malicious prosecution amounting to Rs.1,00,000/-. The case was fixed on 31.05.2007 for cross examination of the plaintiff's witnesses. The counsel did not appear and it was alleged that he was busy with another case at that time. It may be so that the counsel was busy but he should have made arrangement for sending oneone to the court and making a request in that behalf. Learned counsel for the appellant submits that the counsel was under the impression that the defendant himself would make the aforesaid request before the learned court below but the defendant could not appear before the learned court below on account of inclement weather at that time and the aforesaid request could not be made. Learned counsel for the appellant submits that one opportunity may be afforded to the defendant- appellant to defend the case from the stage as it was on 31.05.2007. 3 S.B.CIVIL MISC. APPEAL NO.5312/2008. Suresh Kumar & Orz.VS Durgalal. In the facts and circumstances of the present case, I am inclined to accept this appeal and remand the case to the learned trial court after setting aside the order dated 31.05.2007 and the ex-parte decree dated 02.06.2007 passed by the learned trial court with the direction that the learned trial court would proceed with the trial from the stage at which it was on 31.05.2007 and afford an opportunity to the defendant-appellant to cross examine the plaintiff's witnesses. The aforesaid order is being passed subject to the condition that the appellant would furnish a solvent security for the decreetal amount before the learned trial court prior to being allowed to cross examine the witnesses of the plaintiff. It is made clear that in case the appellant fails to submit the solvent security this order shall stand vacated. Consequently, the appeal is allowed subject to the above conditions. The impugned order is set aside. The application filed on 18.07.2007 under Order 9 Rule 13 C.P.C. is allowed. The order dated 31.05.2007 and the ex-parte decree dated 02.06.2007 is set aside, as indicated above. The parties are directed to appear before the learned trial court on 24.07.2009. It is made clear that no further notice will be issued by the learned trial court in this behalf. (DALIP SINGH),J. Solanki DS, Jr.P.A.