1. The appellant has, in this appeal, challenged the decision of the com below rejecting his application under Order 9, Rule 13 of the Code of Civil Procedure. The suit was filed in Barh court by respondent No. 1 for a money decree amounting to Rs. 30,000.00 and odd on the allegation the a sum of Rs. 24,000.00 had been borrowed by the defendant No. 1 as the karta of his family in 1966. Other members of his family were impleaded as defendant 2 to 5, out of whom defendants 4 and 5 are minor and were place by the court under the guardianship of lawyer. The suit was taken up for hearing on 30-11-1972, when, the parties and the counsel were present in court. However, as the case had been called out late in the day no evidence was led and the case was put down for further hearing next day. On the 1st of December, 1972, admittedly there was a strike by the advocate for the court in support of a certain political demand and no lawyer attended the court. The plaintiff, however, appeared in person and examine himself as a witness. Two other witnesses were also examined on his behalf without the assistance of a lawyer. Nobody appears on behalf of the defendants and the court recorded an order in the order sheet, which is included in the paper book at page 13, that in the circumstances the proceeding had be heard ex parte. Thereafter, the court below decreed the suit ex parte with costs against the defendants by a short judgement recorded in the order sheet. On the very next day, the defendant No. 1 filed, through his counsel, an application under Order 9 Rule 13 and Sec.151 of the Code of Civil Procedure which was registered as a miscellaneous case and has been, after contest, dismissed by the impugned order.

2. The court has stated in paragraph 9 of its judgement that admittedly there was a strike by the lawyers but held that in the circumstances the defendant cannot be said to have been prevented by any sufficient cause within the meaning of Rule 13 from appearing in the suit.

3. We have gone through the entire evidence led in the case by the pasties. The appellant has examined seven witnesses including himself and their evidence fully established that not only the lawyers of Barh were on strike but their clerks also did not attend the court and did not do any pairavi in their cases. Several of the witnesses examined are lawyers clerks themselves. The statement made by O.W. 2 Nawal Kishore Pd. Singh who is also an advocates clerk that some of the clerks were taking steps by way of pairvi in their cases does not inspire confidence. According to the oral evidence of the plaintiff, the defendant No. 1 was personally present in court but still did not go inside the court room with the object of delaying the hearing of the suit. From the evidence it appears that the defendant was present at Barh on that date and it must be assumed that he attended the court. However, if he was not able to get assistance of his lawyers it cannot be said that he was not prevented by sufficient cause in not taking part in the trial of the suit in which a decree for such a large amount of money has been claimed. It is not suggested that defendant No. 1 is well versed in legal matter and could have conducted the trial of the suit by himself. In this circumstance we accept the evidence of A.Ws. and hold that defendant No. 1 was prevented from appearing and contesting the suit on 1-12-1972 by sufficient reason and on merits his application should be allowed.

4. Mr. Sinha, appearing for the plaintiff respondents has contended that since the parties appeared on the 30th November, 1972, when the suit was taken up for hearing, the decree which has been passed in the case cannot be called an ex paste decree and consequently it must be held that the application under Order 9, Rule 13 is not maintainable. It is not possible to accept this argument, inasmuch as, the learned Subordinate Judge treated the proceeding on 1-12-1972 as ex paste proceeding and said so in