Hon’ble Tarun Agarwala, J.—The plaintiff respondent Nos. 1 and 2 instituted a suit No. 340 of 1996 against the petitioner and respondent No. 3 for a declaration that the plaintiffs be declared the owner of the house in question along with defendant-respondent No. 3. The defendant No. 1 is the present petitioner and is the Nagar Nigam of Allahabad. The record indicates that the summons were duly served upon the petitioner on 24th June, 1996 and since the petitioner did not appear, the trial Court, by an order dated 12.12.1996, ordered the suit to proceed ex parte under Order 9 Rule 13(1)(a) of the C.P.C.

2. It is alleged by the petitioner that Sri Jata Shanker Pandey, the Advocate of the petitioner before the District Court appeared before the trial Court in relation to some other matters of the Nagar Nigam. The Court asked the Advocate as to why he was not appearing in the present case. It is further alleged that the Advocate stated orally to the Court that he had no instructions in the matter. It is alleged that the Court directed the said Advocate to seek necessary instructions and, on this basis, Sri Jata Shanker Pandey, Advocate moved an application dated 3.2.1999 seeking time to file the written statement. It is also alleged that a formal vakalatnama was filed subsequently and further time to file the written statement was again sought for on 21.4.1999. On 21.4.1999, the petitioner also filed an application along with an affidavit sworn by Sri Krishna Kant Patel, an employee of the Nagar Nigam for the recall of the order dated 12.12.1996. The record discloses that on account of the non-appearance of the petitioner, the recall application was dismissed in default on 5.7.1999 and eventually, the suit was decreed ex parte against the petitioner defendant.

3. During the pendency of the execution Case No. 4 of 2000, a restoration application dated 31.5.2002 was filed by the petitioner under Order 9 Rule 13 supported by an affidavit of Krishna Kant Patel, an employee of the Nagar Nigam. It was alleged that Sri Jata Shanker Pandey, Advocate was doing pairvi of the case on behalf of the Nagar Nigam and due to his engagement in other Courts, he could not appear and the suit proceeded ex parte and was ultimately decreed. It was also alleged that Krishna Kant Patel, the pairokar, was attached to another Advocate, for pairvi in other cases and therefore, he was unaware of the proceedings in the present case and only came to know about these proceedings and the ex parte decree when he appeared before the executing Court on 4th May, 2002 in regard to some other matter. The restoration application was opposed by the plaintiffs. The trial Court after considering the objections allowed the restoration application by its order dated 3.11.2003 holding that sufficient cause was shown for the recall of the ex parte decree. The plaintiffs, being aggrieved by the aforesaid order, filed a revision which was allowed by a judgment dated 31.7.2005 and the restoration application under Order 9, Rule 13 of the C.P.C. was dismissed. The revisional Court came to the conclusion that the petitioner had full knowledge of the proceedings and deliberately avoided to participate in the said proceedings, and on this basis, rejected the application of the petitioner for the recall of the ex parte decree. Aggrieved, the petitioner has now filed the present writ petition.

4. Heard Sri Ajit Kumar Singh, the learned Counsel for the petitioner and Sri M. A. Qadir, the learned Counsel for the plaintiff-respondents.

5. The sole ground for recalling the ex parte decree is that the petitioner’s Advocate was doing pairvi in the case and he failed to appear on account of his engagement in other cases in other Courts. It was also averred that the pairokar was attached to another Advocate for other cases of the Nigam and therefore, he was also unaware of the proceedings of the case.

6. Where a defendant employs a Counsel for the purpose of his appearance and he neglects