A party must be given an opportunity to present their oral arguments before a decision is rendered in a suit.

BHAGAWATI PRASAD BANERJEE, J.

( 1 ) THE present revision petition has been filed by the petitioners impugning the order of the learned Additional Civil Judge (Junior Division) No. 5, Jodhpur dated 5-5-1998. By the order impugned, the learned Additional Civil Judge had disposed of an application filed by the non-petitioners under Order 9, Rule 13 read with Section 151, C. P. C. By the impugned order the learned Additional Civil Judge has accepted the application under Order 9, Rule 13, C. P. C. and set aside the decree passed by the Court on 31-10-1996.

( 2 ) THE facts which stand out prominently in this case are that the non-petitioners had been trying to avoid the decision of the suit by asking for adjournments time and again and the Court has been refusing it, so much so that the ex parte proceedings were drawn against the non-petitioners due to their absence. The ex parte proceedings taken against the non-petitioners were sought to be set aside by the non-petitioners but the Court refused to set aside the decree. However, the non-petitioners were permitted to participate in the proceedings in terms of the Code of Civil Procedure. During the course of transactions on 4-10-1996 the case was posted for final hearing on 14-10-1996. On 14-10-1996 the Presiding Officer was on leave and the case was adjourned by the Court Reader. The next date fixed was 29-10-1996 though there is an over-writing in the digit o constituting 10. On 29-10-1996 an application was presented by the counsel for the non-petitioners for adjournment. The arguments on the application were heard and the case was posted for 30-10-1996. There is an over-writing here also on digit o which constitutes 10 in the digit frame. On 30-10-1996 the learned Court by a detailed order rejected application for adjournment and pronounced the order. On 30-10-1996 itself as a post-script the Presiding Officer wrote that the arguments of the counsel for the plaintiff- petitioners were heard and the case was posted for decision on 31-10-1996. On 31-10-1996 the suit was finally adjudicated and decreed by the learned trial Court.

( 3 ) AN application under Order 9, Rule 13, C. P. C. was referred by the non-petitioners before the trial Court. The trial Court considered the arguments of both the parties and came to the conclusion that on 30-10-1996 the date was fixed for pronouncement of order on the application and on that day itself the arguments were heard and 31-10-1996 was fixed for judgment. The Court was further of the opinion that notwithstanding an ex parte order the non-petitioners were permitted to participate in the proceedings after 24-4-1996. Therefore, it was necessary to hear the arguments of the counsel for the non-petitioners but no date was fixed for hearing the arguments of the counsel for the non-petitioners. Further the learned Court has also noted that the counsel for the non-petitioners affidavit shows that he had written in the diary 30-11-1996 as to be next date of hearing, on 29-10-1996 and, therefore, it cannot be presumed that there was any notice to the counsel for the non-petitioners for the date 30-10-1996 and in this background the Court was pleased to accept the application under Order 9, Rule 13, C. P. C.

( 4 ) LEARNED counsel for the petitioners in this revision petition has urged that the judgment and decree passed on 31-10-1996 cannot be considered to be an ex parte decree and since this decree could not have been treated as an ex parte decree, therefore, no application under Order 9, Rule 13, C. P. C. was maintainable. Learned counsel has further urged that the diary of the learned counsel for the non-petitioners has not been produced to show that he noted the date as 30-11-1996. Learned counsel has further urged that a presumption deserves to be drawn under Section 114 of the Evidence Act against the non-petitioners because on 30-10-1996 the Court proceedings record that counsel for the parties are present and, therefore, it cannot