1. This appeal by the defendants arises out of an adverse order passed on their application filed under O.9, R.13 of the Code of Civil Procedure for setting aside an ex parte decree passed in a partition suit on 19-1-1971. The appellants who were some of the defendants had entered appearance and filed their written statement and, as it appears from the order sheet which was placed before me by learned counsel for them, they were prima facie also diligent on all the dates.

2. Issues were settled on 23-11-1970 and on 6-1-1971 no step was taken on their behalf and on that very day the court directed for taking up the suit ex parte and fixed for ex parte hearing on 19-1-1971. On this day hazri was filed on their behalf but, according to their case, appellant No.1 who was looking after the case and who had come to attend the court on 19-1-1971 suddenly developed colic pain in his stomach and could not attend the hearing and the suit was taken up for ex parte hearing and decreed on that very day. The application under Rule 13 of O.9 was filed on 29-1-1971 explaining the reason for his absence as mentioned above, which was controverted by the plaintiffs in their rejoinder.

3. In support of their case the appellants examined appellant No.1 as A.W. 1; a resident of an adjacent village as A.W.2, who is also said to have come to attend the court in his own case on 19-1-1971, to support them on the point of indisposition of appellant No.1; and a pleaders clerk, A.W.3, on whose seat the appellant No.1 claims to have been lying being taken ill on that day. On behalf of the opposite party-respondents, however, only one of the plaintiffs examined himself as O.W.1 who stated that appellant No.1 had not come on 19-1-1971 to the court and a false hazri was filed on his behalf.

4. The trial court has held that the appellants had failed to prove that "he was prevented from sufficient cause from appearing in the court when the suit was called for ex parte hearing. Even if he had appeared personally, he would not have been heard as he had not prayed for recalling the order for ex parte hearing passed on the previous date. He has not stated anything about his absence on 6-1-1971 while the court passed order for ex parte hearing on the following date." It has also found force in the submission of the plaintiffs that "bogus hazri" was filed on 19-1-71".

5. The court below appears to have been very much obsessed by the appellants failure in not making an application for recalling the order of the ex parte hearing because a little later in the order it has observed that "even if the Hazri was genuine, it was of no use as the suit was fixed for ex parte hearing and the proper course for the applicants-defendants was to pray for recalling the order passed on the previous date".

6. Mr. Kailash Roy had read out to me the excerpts of the order dated 6-1-1971 to show that on that day the court below was busy in another matter and, therefore, the suit in question could not have been taken up. I do not find any substance in the proposition as has been advanced by Mr. Roy. The crux and substance of the matter, however, as it appears to me on a reading of the notings of the orders, are that the order for placing the appellants ex parte itself was without jurisdiction inasmuch as according to Rule 6 of Order 9 it is only when "the defendant does not appear that the suit is called, on for hearing" and in a case where the summons is duly served "the court may make an order that the suit be heard ex parte". From the scope and scheme of Rule 6, therefore, it is obvious that non-appearance of the defendant also must be at the stage when the suit is called on for hearing. It may well be that he might not have taken any step by filing a petition for time or, for that matter, his hazri in the early hours for some reason or the other, but later on when the suit is called on for hearing he might be present and respond to the call. Order 9 Rule 13 also contemplates to