1. This revision is directed against concurrent judgment of the courts below refusing to set aside an ex parte decree.

2. The facts are these: - The respondent-plaintiff brought a suit for ejectment and arrears of rent against the appellant-defendant in the Court of Munsiff, R. S. Pora. The defendant was summoned and appeared in the Court on 14-11-1971 accompanied by his counsel who took time to file the written statement. The written statement was not, however, filed on several subsequent hearings up to 20-1-1972 when the counsel for the defendant reported "no instructions". As such the Court took ex parte proceedings against the defendant. Thereafter the case was adjourned for recording ex parte evidence, first to 9-2-1972 and then to 24-2-1972 and eventually an ex parte decree was passed against the defendant on 3-3-1972. On 29-3-1972 the defendant filed an application under O. 9 R. 13 C. P. C. for setting aside the ex parte decree alleging that on account of the declaration of emergency reference apparently being to the emergency declared in December, 1971 due to the outbreak of hostilities between India and Pakistan- he had gone to the Punjab State where he was taken ill and could not move about for 2/3 months, he could not be present in the Court during the relevant time and could be able to know about the ex parte decree only a few days before the application when he returned to his village. The plaintiff contested the application. On consideration of the evidence the trial Court came to the conclusion that the defendant was in his village from 16-2-1972 to 12-3-1972 and, even after, working on a Government Drug Farm and that his allegation about ailment was false and made up and dismissed the application holding that no sufficient cause was made out for non-appearance by the defendant. The Court did not, however, return any clear finding as regards the allegation that defendant had gone over to Punjab earlier. By an identical prescription the learned Subordinate Judge (C. J. M.) Jammu dismissed the appeal filed before him. Hence this revision.

3. Order 9 Rule 13 reads:

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 satisfies 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:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also."

The question is whether in a case, like the present, where the defendant appears and then absents himself not only on one date but on several successive dates, to which the hearing is adjourned, resulting first in the case being set ex parte and then an ex parte decree being passed against him, the requirements of this rule would be satisfied entitling the defendant to an order to set aside the ex parte decree, if he shows sufficient cause for his non-appearance on the date when the ex parte proceedings were first taken against, him and assigns no such cause for his non-appearance on the subsequent dates, to which the hearing was adjourned, until the ex parte decree was passed. The learned counsel for the petitioner says; yes. In fact that is the sheet-anchor of his arguments in the present case. He has even tried to support this view by a decision of the Lahore High Court in Krishan Lal Malhotra v. Madan Lal (AIR 1950 Lahore 43). I will come to this decision later. Here it is enough to say that the view advanced by the learned counsel is not a correct view of the law as set out in O. 9 R. 13.

On the language of O. 9 R. 13 a defendant is entit

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