Honble CHAUHAN, J.–The appellant is challenging the order dated 3.1.2001 passed by the Additional District Judge No.4, Kota whereby the learned Judge has dismissed the application under Order 9 Rue 13 Civil Procedure Code (henceforth, to be referred to as `the Code, for short) for setting aside the ex-parte decree dated 11.9.1998.

(2). The brief facts of the case are that the plaintiff- respondent had filed a suit for recovery of money against the defendant-appellant. The suit was fixed for appellants evidence on 18.8.1998. However, on that day, the lawyers at Kota were on strike. Therefore, Mr. V.N. Singh, the authorized representative appeared before the court and the next date was assigned was 4.9.1998. But inadvertently Mr. V.N. Singh informed his counsel that the next date in the case is 8.9.1998. Hence, on 4.9.1998 when the case was taken up, neither the counsel nor the authorized representative appeared before the learned Court. Therefore, on 4.9.1998 an ex-parte proceedings commenced against the defendant and on the next date i.e. 11.9.1998, the suit was decreed as ex-parte. Immediately, on 16.9.1998 the appellant moved an application under Order 9 Rule 13 of the Code. Hence, the said application was moved in a short span of five days. According to the affidavit of Mr. V.S. Singh, he could not appear before the Court on 4.9.1998 as he was suffering from fever. In fact, in order to inform the court, he had sent a telegram. However, the said telegram was received on 7.9.1998. After hearing both the parties, vide order dated 3.1.2001 the learned Judge dismissed the said application. Hence, this appeal before this Court.

(3). Every person has a right to be heard. Such a right not only flows out of the principle of natural justice, but also eminents from Article 21 of the Constitution of India. The right of hearing is an integral part of the right to life and right to personal liberty. Such a right can only be deprived by a procedure established by the law. Under Order 9 Rule 6 of the Code, where the plaintiff appears and defendant does not appear when the suit is called for hearing and if it is proved that the summons were duly served, the court has the power to hear the case ex-parte. Thus, in case the defendant does not appear after receiving the summons, the court is entitled to proceed ex-parte against him. According to Order 9 Rule 7 of the Code in case the defendant, for his previous non-appearance, shows good cause, then the right to contest the suit may be restored. In case, an ex-parte decree has been passed against the defendant under Order 9 Rule 13 of the Code, a right has been given to the defendant to seek setting aside of the ex-parte decree provided sufficient cause for his absence is placed before the Court. The Court is further empowered to impose cost as it thinks fit before setting aside the ex-parte decree. While setting aside an ex-parte decree, the court has to balance the conflicting interest of the defendant as he has a right to be heard, and to the plaintiff who has a right to claim that the case has been finally decided in his favour and a finality has to be attached to the said judgment and decree. Since an onerous responsibility has been imposed on the court, the court should not dismiss an application under Order 9 Rule 13 of the Code, in a mechanical manner. The court should be sensitive to the right of the defendant, to his social and educational background to be able to understand the intricacies of the legal procedure, to his conduct after passing of the decree. In case, the court has reasons to believe that the defendant has been avoiding the proceedings intentionally, or he has been lethargic in defending his case, or there has been an inordinate delay in submitting an application under Order 9 Rule 13 of the Code, then the court would be justified in dismissing the application under the said order. However, in cases where the litigant is poor and illiterate, where he is unaware of the com

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