TAFAZUL HUSSAIN Vs. ABDUL SATTAR

JUDGEMENT

(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.

(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