Hon’ble Suneet Kumar, J.—The defendant-applicant has approached this Court assailing order dated 4 September 2015 passed by the Appellate Court/Additional District Judge, Court No. 16, Allahabad in Misc. Civil Appeal No. 162 of 2013 (Suresh Chandra Kesarwani and others v. Ratan Kumar Chaurasiya and others) arising from an order dated 8 November 2013 passed by the Small Causes Court, Allahabad rejecting the application filed under Order 9 Rule 13 CPC.

2. I have heard learned counsel for the parties and perused the record.

3. The Courts below noted in the impugned order that a suit being Original Suit No. 187 of 1999 (Chhotey Lal and others v. Hari Shankar Tiwari and others) was instituted for cancellation of sale-deed. On 23 August 1999 an order was passed to proceed ex parte, consequently, the suit was decreed ex parte on 20 July 2000. In an application under Order 9 Rule 13 CPC, the ex parte decree was set aside on 13 March 2001. Upon restoration, the applicant-defendant again did not participate in the suit, as such, the trial Court on 13 July 2006 directed to proceed ex parte, finally the suit was decreed ex parte on 20 October 2009. Aggrieved, the applicant-defendant preferred an application under Order 9 Rule 13 CPC which was rejected, the appeal also met the same fate. The aforementioned orders are being assailed under Article 227 of the Constitution.

4. Submission of the learned counsel for the applicant is that the applicant could not appear on the date of hearing for two reasons, firstly, his wife fell ill and secondly, his counsel Sri Chintamani Pandey fell ill and subsequently died, therefore, the case went unattended. The Court below upon examining the material on record came to the conclusion that the reasons assigned were incorrect and false; the applicant was attending the Court in other proceedings but deliberately did not appear in the suit proceedings. It has been noted in the impugned order that on 15 April 2005 injunction application (64-Gha) was filed by the earlier counsel i.e. Sri Chintamani Pandey, thereafter, the applicant engaged a new counsel Sri Parmanand Mishra on 20 May 2005. It is also noted that apart from Chintamani Pandey, other counsels were also appearing alongwith him, the power of all the counsels were available on the record. That apart, the applicant had instituted another suit being Suit No. 46 of 2006 (Suresh Chandra v. Ratan Lal) before the Civil Judge (Junior Division), Allahabad on 7 January 2006, the suit was instituted through his subsequent counsel Sri Parmanand Mishra and in the said suit, the applicant alongwith his advocate were participating continuously till 22 March 2010; further, in criminal proceeding being Case No. 1894 of 2005 (State v. Rakesh Kesharwani and others), the applicant has been continuously appearing since 3 May 2003 to 17 March 2012 as an accused. The appearance of the applicant was noted in the proceedings. The present suit was ordered to proceed ex parte on 13 July 2006 and was subsequently decreed ex parte on 20 October 2009. The reasons assigned by the applicant for not appearing in the suit are (1), illness of his wife, (ii), his earlier counsel Sri Chintamani Pandey who despite assuring the applicant did not participate in the proceedings, subsequently died. The Courts upon considering the material available on record came to the conclusion that the applicant was participating in other proceedings, whereas, in the present suit, the applicant deliberately avoided the proceedings. The plea that his earlier counsel was not participating in the proceedings due to illness was not accepted as the applicant engaged subsequent counsel much earlier on 20 May 2005, who was perusing the cases be it civil or criminal alongwith the applicant, therefore, the Courts below recorded that the cause assigned for being prevented in appearing on the date of hearing is absolutely false. The illness of the wife was not accepted as no medical reports were filed, furt