1 S.B.CIVIL MISC. APPEAL NO.2170/2007 Mohd. Ayub Khan v. Mohd. Zafar Khan Date of Judgment :: 29th January, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Anil Kavi Raj, for the appellant. Mr. K.S.Yadav, for the respondents. .... By judgment dated 3.7.2007 learned Additional District Judge (Fast Track) No.2, Udaipur decreed a suit for possession exparte. To recall the judgment and decree dated 3.7.2007 an application as per provisions of Order IX Rule 13 read with Section 151 Code of Civil Procedure was preferred by the appellant defendant. Learned Additional District Judge (Fast Track) No.2, Udaipur by order impugned dated 10.9.2007 rejected the application by holding that no adequate reason was given for remaining absent by counsel for the defendant appellant at the time of hearing. I have perused the order impugned and also record of the trial court being called for under the order dated 5.12.2007. In the application preferred under Order IX Rule 13 Code of Civil Procedure it was stated on 2 behalf of the appellant that his counsel noted down a wrong date in his diary and, therefore, he failed to appear before the court on 26.5.2007 and further on 2.7.2007. On 26.5.2007 the trial court closed the evidence of the defendant and fixed the matter for hearing on 2.7.2007. Hearing of the case took place on 2.7.2007 and judgment was pronounced on next day i.e. 3.7.2007. The defendant came to know about disposal of the suit on 30.7.2007 on receiving information from one advocate Shri Sanjay Shah. Learned trial court rejected the application by disbelieving the statements given in the application and also on the count that no affidavit sworn in by Shri Sanjay Shah was filed. On behalf of the plaintiff respondent it is asserted that the defendant appellant avoided appearance before the court, therefore, the court rightly proceeded exparte and also rightly rejected the application preferred under Order IX Rule 13 Code of Civil Procedure. From examination of record, I found that as a matter of fact counsel for the defendant was appearing before the court on most of the dates and also co-operated in proceedings. It was only 26.5.2007 and 2.7.2007 when the counsel for the defendant failed to appear before the court. The reason given by the defendant in the application is plausible one and the 3 court in these circumstances should have believed the advocate. It is always desirable that the matters be decided by providing hearing to the parties if the party is not otherwise intentionally ignoring the same. All endeavour should always be made to decide a dispute by its adjudication as per the principles of natural justice and the measure to proceed exparte should be adopted only in compelling circumstances. In the instant matter intentional ignorance of the adjudication by the defendant is not at all available. The misc. appeal, therefore, is allowed. The order impugned dated 10.9.2007 passed by learned Additional District Judge (Fast Track) No,.2, Udaipur is quashed. The application preferred under Order IX Rule 13 Code of Civil Procedure for setting aside exparte judgment and decree dated 3.7.2007 is allowed subject to payment of cost to the plaintiff respondent in a tune of Rs.2000/- on or before 3rd March, 2008. The judgment and decree dated 3.7.2007 and also the order dated 26.5.2007 closing evidence of the defendant are quashed. Learned court below shall proceed further with the matter from the stage the suit proceedings were prior to 26.5.2007. ( GOVIND MATHUR ),J. Kkm/ps.