Hon’ble Suneet Kumar, J.—Heard learned counsel for the parties.

2. The respondent/landlord filed an application under Section 21 (1)(a) of Act No. 13 of 1972 for release of the shop in dispute. The application was allowed ex parte on 12 December 2011 by the Prescribed Authority. Aggrieved, petitioner made an application under Order 9 Rule 13 of Code of Civil Procedure stating that he could not appear on the date of hearing for the reason that he was trying to settle the dispute outside the Court with the respondent/landlord. The settlement could not be reached, therefore, he did not appear on the date fixed for hearing. The Authority by order dated 10 April 2012 rejected the application noting that the application was not maintainable as the release application was decided on merits. Aggrieved, by the order dated 10 April 2012 rejecting the application under Rule 13 of Order 9 and the decree, the petitioner has approached this Court in writ jurisdiction.

3. The submission of the learned counsel for the petitioner is that on 25 October 2011, the evidence of the petitioner was closed, however, the Court permitted the petitioner for filing the evidence on 18 November 2011. On 18 November 2011 the petitioner appeared, but, the date was adjourned for 22 November 2011. On the said date the petitioner did not appear taking a plea that he was trying to settle the matter out side the Court. On 22 November 2011 the case was directed to come up for argument on 1 December 2011, finally the release application was decided on merits on 12 December 2011. The Court below upon noting the aforementioned dates and the conduct of the petitioner rejected the application to recall the judgment and decree holding that since the application was decided on merits, the application under Order 9 Rule 13 is not maintainable.

4. It is contended on behalf of the petitioner that the petitioner could not appear after 18.11.2011 on a bona fide belief that a compromise would be effected between the parties, therefore, the petitioner may be given an opportunity and the matter be decided upon rehearing the petitioner.

5. In an application under Order 9 Rule 13 to recall an ex parte judgment and decree, the petitioner would have to establish that he was prevented by any sufficient cause from appearing when the case/suit was called on for hearing. It is admitted that the petitioner was participating in the proceedings and appeared on 18 November 2011, thereafter, the petitioner did not appear on the pretext that effort was being made to settle the matter outside the Court, therefore, the petitioner was aware of the date next fixed in the case for 22 November 2011. On the said date the petitioner did not appear on the plea of negotiation and settlement. But it is urged that no settlement could be arrived at between the parties, therefore, it was incumbent upon the petitioner to have enquired from his counsel the next date fixed on 22 November 2011, the date of which the petitioner admittedly had knowledge. The Court fixed 1 December 2011 for argument and finally the release application was decided on 12 December 2011.

6. This rule requires an application by the defendant and if the defendant satisfies the Court that (i) the summons was not duly served; or (ii) he was prevented by any sufficient cause from appearing when the suit was called out for hearing, the Court will set aside the decree passed against him and appoint a day for proceeding with the suit.

7. The language of the rule is plain, express and unambiguous and the grounds mentioned therein are exhaustive.

8. As provided in Rule 6, the suit may proceed ex parte against the defendant only when it is proved by the plaintiff to the satisfaction of the Court that the defendant did not appear even though the summons was duly served. In that case, an ex parte decree may be passed against him. Therefore, if the defendant satisfies the Court that the summons was not duly served upon him, the Court must s