1. Respondents-plaintiffs suit for petitioners-defendants eviction from Shop No.1 situated at Indira Hotel, Vinayak Mishra Dharamshalla, Chand Nagar, Jammu, and recovery of Rs.1125/- as arrears of rent @ Rs.125/- per month, filed in May, 2000, was decreed in ex-parte, on May 28, 2005, by the 2nd Additional Munsiff, Jammu, on the strength of the evidence produced by the respondents, holding that the respondents requirement for use and occupation of the suit shop was comparatively more than that of the petitioners.

2. The petitioners had been set ex-parte in the case on October 26, 2002, when after appearing in the transferee Court of 2nd Additional Munsiff, Jammu on 19.04.2001 through their counsel Sh. Achal Sethi, they absented from the proceedings.

3. Before the transfer of the suit, the petitioners had filed their written statement to the respondents suit, in the Court of Munsiff, Sub-Registrar, Jammu, on November 07, 2001 where they had entered appearance therein for the first time on July 15, 2000.

4. Seeking setting aside of the ex-parte decree, the petitioners approached the trial Court by their application, on January 08, 2004 saying that, acting on the advice of their counsel that they were not required to appear in the case on each and every date of hearing, they did not appear in the Court. Their counsel, however, neither appeared on 26.10.2002, when they were set ex-parte nor did he appear thereafter in the case although they had remained in touch with him and his staff, enquiring about the further dates of hearing fixed in the case, when the said counsel and his staff would assure them that their case was being taken care of and they were duly represented in the Court.

5. They are stated to have gathered knowledge about the passing of the ex-parte decree on January 08, 2004 when they were informed by Police Station, Nowabad, to handover the possession of the suit shop to the respondents-plaintiffs, in pursuance to the order passed in the execution proceedings initiated by the respondents for execution of the ex-parte decree.

6. Justifying the filing of their petition within the prescribed time, from the date of their acquiring knowledge of the ex-parte decree, they had alternatively, prayed for condonation of delay, if any, saying that it was not deliberate but was because of the incorrect information that their learned counsel and his staff had been passing on to them.

7. The petitioners placed on the records, an affidavit of their counsel, when the respondents questioned the veracity of the cause shown in their application seeking setting aside of the ex-parte decree, in the absence of the affidavit of their counsel.

8. Mr. Achal Sethi, the Advocate, engaged by the petitioners for defending them in the trial Court says in his affidavit as follows:-

"1. That I was engaged as an Advocate by Kishore Kumar and Parshotam Lal defendants in the suit titled Yoginder Pal and anr. v. Kishore Kumar and Ors. pending in the Court of Sub-Registrar, Munsiff, Jammu.

2. That I appeared on behalf of the defendants in the suit and filed written statement on behalf of the defendants on 7.11.2001 and was informed by the Court that the case has been transferred to the Court of 2nd Additional Munsiff, Jammu and the Court directed the parties to appear in the transferee Court on 24.12.2001.

3. That on 24.12.2001, I appeared before the transferee Court but file had not reached there and when I enquired from the Presiding Officer, I was informed that whenever the file will reach in the Court, the parties will be issued notice of appearance. I accordingly informed the defendants that they have to appear when they receive notice. As no notice was received by me or by the defendants so I did not appear thereafter in the transferee Court on any date thereafter, what had happened in the suit, I have no knowledge of it."

9. Set down for evidence of the parties, on the issues, arising out of the petitioners application, the parties opted not to examine any

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