The appellant's sufficient cause for non-appearance at the hearing entitled them to a fresh hearing on the merits of the suit.

Kinkhede—I think this case must go-back for trial on merits. The allegations on the basis of which the hearing of the suit was sought to be reopened were not denied. The respondent simply denied knowledge which was nothing more than a plea of ignorance. But there was the appellant's agent's affidavit on record which conclusively proved that, but for the missing of the train, the defendant's agent would Surely have attended Court and given instructions to the pleader to make the necessary defence. This was the situation in which the pleader already engaged was placed and consequently he could not put in the defence. The plaintiff's claim may have been contestable on ground which may not necessitate summoning any witnesses' for the hearing. So the mere circumstance that the suit was fixed for final di3p6sal and the defendant made a further default in failing to summon his witnesses, does-not affect the question. For aught we know, his defence on law points or on facts which the parties might admit at the hearing, may not require to be substantiated by any oral testimony of witnesses, or the agent may have been accompanied by the witnesses whom he intended to-examine in the case. It is, therefore not proper to speculate about the further-default in summoning witnesses which, the respondent's pleader attempted to make much of before me. He even went to the length of calling that default a piece of gross negligence on the appellant's-part. It may or may not be so with that I am not concerned under Order 9, Rule 13, Civil P.C., which deals only with a default in appearance and not in the doing of any act.

2. The default in appearance on 13th December 1926, was clearly attributable to the proved inability of the agent to attend Court, and instruct the pleader retained in the case The agent's affidavit is clear and there is no counter-affidavit to lead me to think that the excuse was invented for the purpose of these proceedings. The Court went out of its way to imagine that this was a ease similar to the other cases it had in its experience come across of false excuses of missing of trains. The defendant's preparation to defend the suit is clearly established by the fact that a pleader was engaged by him and that he deputed an agent to go to Bhandara to instruct the pleader and that the said agents bad actually prepared himself to start for Bhandara, but unfortunately missed the train, and by the further circumstance that he made an application for setting aside the decree the very next day. This case thus comes within the principle enunciated in the case of Arunachela Ayyar v. Subbaramiah, 1923 ILR(Bom) 60. I am satisfied that the appellant had sufficient cause for non-appearance at the hearing and that he1 is entitled to a hearing on the merits of the suit.

3. I, therefore, reverse the order refusing to set aside the ex-parte decree and hereby set aside the decree passed ex parte and direct the Court below to rehear and decide the suit on its merits according to law.

4. The lower Court shall, in order to give effect to this order, fix a fresh date for the further hearing of the suit, and give notice to the parties to appear before it with their respective evidence on that day, and after recording their pleadings and evidence, if any, which they shall produce at that date, decide the suit according to law, if ripe for decision; but if, after a perusal of the pleadings, it frames issues and sees good cause to grant an adjournment for adducing such evidence as may be necessary for its decision upon such issues it may do so under the provisions of Order 15, Rule 4, Civil P.C. The appeal is allowed, but in the circumstances of the case, I award no costs to the appellant.

Final Result : Allowed