A party who fails to appear on the adjourned date due to a sufficient cause and whose approach is not mala fide can apply to set aside the ex parte decree under O. 17, R. 2, C. P. C.

( 1 ) THE aforesaid two revisions were filed by the defendant as against the impugned order dated 23rd July, 1987, by virtue of which his application for setting aside ex parte decree were rejected. Before the admission of the case this Court issued notice to the plaintiff/respondent and he having appeared and (filed) counter-affidavit to the affidavit accompanying stay application and rejoinder affidavit having been filed by the parties, it became desirable and accordingly the aforesaid two revisions are being disposed of finally after hearing learned counsel for the parties at the stage of admission. The impugned order dated 23rd July, 1987, disposed both the Misc. Case No. 4 of 1986 (J. S. C. C. Suit No. 12 of 1983) and Misc. Case No. 5 of 1986 (J. S. C. C. Suit No. 12 of 1983) by means of a common judgement. Since facts in the aforesaid two cases were identical, therefore, the appellate Court decided the case by a common judgement. Accordingly, the aforesaid two revisions are being disposed of by means of this order.

( 2 ) BRIEF facts in these revisions are : the plaintiff-respondent filed a suit for ejectment and arrears of rent against the applicant. The suit was contested denying plaint allegations with further averment that provisions of Act 13 of 1972 are applicable and the suit has been filed on incorrect facts. On 28th Oct. 1985, as per the order sheet filed by the respondent an application 48-C was made by the applicant for getting the map prepared by the Court Amin in order to effectively dispose of the present dispute. On this the court directed to file an objection and fixed for disposal 27th Nov. 1985. On that date the court ordered that that be put up for disposal after the evidence is over and fixed 20th Dec. 1985, for evidence. On an application of the applicant on 20th Dec. the case was fixed on 8th January, 1986. On this date, the case of the applicant is that since by inadvertence he noted down 18th Jan. instead of 8th January and thus did not come on that date. When the case was called the plaintiff along with his counsel was present but none was present on behalf of the respondent. As per order sheet, it reveals that since counsel for the applicant came in that court in connection with some other case, on inquiry from the court, he stated that he has no instructions in this matter. It is thereafter the court proceeded with the recording of evidence of the plaintiff after lunch and after conclusing the same fixed 9th January for judgement. Since thereafter after receiving intimation the applicant on 9th contacted his counsel when he was informed that since the case is fixed for judgement nothing can be done and he has to apply thereafter for setting aside ex parte decree. Thus, on the advice of his counsel on that date no application was made under O. IX, R. 13, C. P. C. Ex parte judgement, however, was made on 22nd Jan. 1986. Thereafter, within limitation applicant examined the record of the case and made the application before the trial court for setting aside the ex parte decree, which was rejected by means of the impugned order, which is subject matter of present revisions.

( 3 ) LEARNED counsel for the applicant urged that the impugned order suffers from patent illegality as in rejecting the application of the applicant it did not properly look into the record before it and arrived at a conclusion contrary to the evidence on the record and its inferences were legally not sustainable in the eye of law and in doing so exercised its discretion not properly in accordance with law.

( 4 ) LEARNED counsel for the respondents at the outset urged that even application under O. IX, R. 13, C. P. C. was not maintainable as the decision was made in the presence of the counsel and in view of that it cannot be said that the decree is ex parte and it would not be covered under O. XVII, R. 3 (a) C. P. C. Counsels presence was relied on the basis of counsel statement in the case that he has no instruc