The imposition of costs is mandatory under Order 9 Rule 13 of the Code of Civil Procedure while setting aside an ex parte decree.

( 1 ) SRI A. L: Narayana Rao, the learned Counsel for the petitioner contends that the lower court failed to exercise its jurisdiction inasmuch as he has not followed the mandatory provisions of Order 9 Rule 13 of the code of Civil Procedure. The petitioner herein is the plaintiff in O. S. No. 75/1972. The suit was posted to 5-3-1976 finally and from that date to 20-3-1976 peremptorily. On 20-3-1976 the defendant was absent. The learned Subordinate Judge set the defendant exparte and passed an ex- parte decree on that date. The defendant filed an I. A. No. 287 of 1976 for setting aside the exparte decree. In the affidavit filed along with the I. A. , he contended that on 20-3-1976 he was suffering from influenza fever and he was not able to attend the Court and he had treatment from P. W. 2 a senior physician. Homeopathic Hospital, Gudivada. In the enquiry held by the learned Subordinate Judge the defendant examined the doctor as P. W. 2 to prove that he had taken treatment from P. W. 2 for his fever. P. W. 2 gave evidence stating that the defendant was suffering from fever on 20-3-1976 and he treated him and he also issued a certificate and the hospital records would show that he treated the petitioner-defendant on that date. The learned Sub ordinate Judge accepted the evidence of p. W. 2 since in his view it was above reproach. He, therefore, came to the conclusion that there was sufficient cause for the defendant s inability to attend the Court. He allowed the I. A. No. 287 of 1976 and set aside the exparte decree. The plaintiff was aggrieved with the order setting aside the ex-parte decree even without imposing any condition as to costs at least if not the suit amount. Hence he preferred the revision.

( 2 ) SRI A. L. Narayana Rao, the learned counsel for the petitioner contends that the provisions of Order 9 Rule 13 C. P. C,, abundantly made it clear that the imposition of terms by way of costs or the suit amount is mandatory and since the learned Sub-ordinate Judge while allowing the i A. , and setting aside the ex-parte decree passed in O. S. No. 75 of 1972 did not impose even costs and as such he failed to exercise his jurisdiction conferred on him by the mandatory provisions of Order 9 Rule 13 C. P. C.

( 3 ) SRI S. Govindarajulu, the learned counsel for the respondent- defendant, on the other hand contends that when there is sufficient cause the learned Sub-ordinate Judge felt it not necessary to impose costs and hence the order passed by the learned Sub-ordinate Judge without imposing any terms is in accordance with the provisions of Order 9 Rule 13 c. P. C.

( 4 ) FROM the facts narrated above, it is clear that as the respondent defendant was suffering from influenza fever, he took treatment from p. W. 2 on 20-3-1976, when the matter was posted peremptorily for trial. The learned Sub-ordinate Judge came to the conclusion that there was sufficient cause that prevented the defendant from attending the Court and he, therefore, set aside the exparte decree but he did not impose any terms even as to costs.

( 5 ) THE point that requires consideration is whether the provisions of Order 9 Rule 13 C. P. C. , require the Court to impose costs as condition precedent for setting aside the ex-parte decree? order 9 Rule 13 C. P. C. , reads at follows :"in any case in which a decree is passed ex-parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfied the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit".

( 6 ) THUS Rule 13 of Order 9 C. P. C. , lays down the two grounds on which the Court can set aside an exparte decree passed against the defendant