A party is entitled to set aside an ex-parte decree under Order 9, Rule 13 of the Civil Procedure Code, even if the ex-parte decree was passed due to the negligence of the party or his advocate.

IMMANENI PANDURANGA RAO, J.

( 1 ) THIS is a plaintiffs revision. The petitioner-plaintiff filed a suit for recovery of money based on a promissory note. The execution of the promissory note is admitted but the defendant pleaded that it is not fully supported by consideration and that certain payments were made by him in partial discharge of the pro-note debt. The decree was passed by the learned District ivlunsif, Punganur on 31-1-1990. Pleading that on 31-1-1990, the defendant was at Bangalore and was not able to attend the Munsif court due to illhealth, he filed a petition under Order 9, Rule 13 of the Civil Procedure Code for setting aside the ex-parte decree. The learned District, Munsif rejected that I. A. , at the S. R. stage holding that the suit docket dated 31-1-1990 shows that it was represented that the defendant had no evidence and as such, the suit was decreed on merits and hence, the petition filed under Order 9, rule 13 of the Civil Procedure Code is not maintainable.

( 2 ) ON appeal, the learned Additional District Judge, Madanapalle, found in paragraph 6 of his judgment that on 31-1-1990, to which date the suit stood posted for the defendant s evidence, the defendant was admittedly not present; that the order of the trial court shows that somebody represented on behalf of the defendant that the defendant had no evidence; that the order of the trial court is silent as to whether that representation was made by the advocate appearing on behalf of the defendant or somebody else on behalf of the defendant and that the advocate for the defendant who filed the I. A. , in the trial court endorsed on the petition that he had not represented on behalf of the defendant that the defendant had no evidence and as such, the decree passed by the lower court is an ex parte decree. The learned appellate judge believed the allegation that the defendant was taking treatment at bangalore due to ill-health; that thereby, the defendant could not have been in a position to instruct his advocate to report that he had no evidence and hence, the remedy of the defendant is to file a petition to set aside the ex parte decree under Order 9, Rule 13 of the Code of Civil Procedure. Conequently, the learned appellate Judge has set aside the order of the trial court.

( 3 ) AGGRIEVED by the said decision, the plaintiff preferred the above revision petition;

( 4 ) THE learned counsel for the revision petitioner relying upon the decision in Sourendra Nath vs. Tarubala Dasi argued that the advocate is to conduct the cause of his client to the utmost of his skill and understanding and he must, in the interests of his client, be in a position to advance the argument and that he must make the final decision whether evidence is to be given or not on any question of fact. He, therefore, argued tnat the advocate appearing for the defendant had full authority to report that he did not wish to adduce any evidence on behalf of his client and that such a representation binds the defendant. Relying upon a Division Bench decision of this High Court in damodardass Agarwal vs. R. Badrilal, the learned counsel for the petitioner further argued that for termination of appointment as an advocate, leave of the court is necessary and in the absence of the defendant s counsel seeking leave of the court for termination of his appointment as an advocate, the representation made by the learned advocate before the trial court that the defendant did not wish to let any evidence binds the party.

( 5 ) THE learned counsel for the respondent, on the other hand, submitted that there is no proof in this case that the advocate appearing for the defendant has in fact made a representation to the trial court that the defendant did not wish to let in any evidence. Though the trial court made an observation in its order that the docket entry dated 31-1-1990 showed that it was represented that the defendant had no evidence and consequently, his side was closed, the learned appellate

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