Judgment 1. This appeal by the defendants arises out of an adverse order passed on their application filed under O.9, R.13 of the Code of Civil Procedure for setting aside an ex parte decree passed in a partition suit on 19-1-1971. The appellants who were some of the defendants had entered appearance and filed their written statement and, as it appears from the order sheet which was placed before me by learned counsel for them, they were prima facie also diligent on all the dates. 2. Issues were settled on 23-11-1970 and on 6-1-1971 no step was taken on their behalf and on that very day the court directed for taking up the suit ex parte and fixed for ex parte hearing on 19-1-1971. On this day hazri was filed on their behalf but, according to their case, appellant No.1 who was looking after the case and who had come to attend the court on 19-1-1971 suddenly developed colic pain in his stomach and could not attend the hearing and the suit was taken up for ex parte hearing and decreed on that very day. The application under Rule 13 of O.9 was filed on 29-1-1971 explaining the reason for his absence as mentioned above, which was controverted by the plaintiffs in their rejoinder. 3. In support of their case the appellants examined appellant No.1 as A.W. 1; a resident of an adjacent village as A.W.2, who is also said to have come to attend the court in his own case on 19-1-1971, to support them on the point of indisposition of appellant No.1; and a pleaders clerk, A.W.3, on whose seat the appellant No.1 claims to have been lying being taken ill on that day. On behalf of the opposite party-respondents, however, only one of the plaintiffs examined himself as O.W.1 who stated that appellant No.1 had not come on 19-1-1971 to the court and a false hazri was filed on his behalf. 4. The trial court has held that the appellants had failed to prove that "he was prevented from sufficient cause from appearing in the court when the suit was called for ex parte hearing. Even if he had appeared personally, he would not have been heard as he had not prayed for recalling the order for ex parte hearing passed on the previous date. Even if he had appeared personally, he would not have been heard as he had not prayed for recalling the order for ex parte hearing passed on the previous date. He has not stated anything about his absence on 6-1-1971 while the court passed order for ex parte hearing on the following date." It has also found force in the submission of the plaintiffs that "bogus hazri" was filed on 19-1-71". 5. The court below appears to have been very much obsessed by the appellants failure in not making an application for recalling the order of the ex parte hearing because a little later in the order it has observed that "even if the Hazri was genuine, it was of no use as the suit was fixed for ex parte hearing and the proper course for the applicants-defendants was to pray for recalling the order passed on the previous date". 6. Mr. Kailash Roy had read out to me the excerpts of the order dated 6-1-1971 to show that on that day the court below was busy in another matter and, therefore, the suit in question could not have been taken up. I do not find any substance in the proposition as has been advanced by Mr. Roy. The crux and substance of the matter, however, as it appears to me on a reading of the notings of the orders, are that the order for placing the appellants ex parte itself was without jurisdiction inasmuch as according to Rule 6 of Order 9 it is only when "the defendant does not appear that the suit is called, on for hearing" and in a case where the summons is duly served "the court may make an order that the suit be heard ex parte". From the scope and scheme of Rule 6, therefore, it is obvious that non-appearance of the defendant also must be at the stage when the suit is called on for hearing. It may well be that he might not have taken any step by filing a petition for time or, for that matter, his hazri in the early hours for some reason or the other, but later on when the suit is called on for hearing he might be present and respond to the call. Order 9 Rule 13 also contemplates to show sufficient cause for his absence when suit is called on for hearing. Order 9 Rule 13 also contemplates to show sufficient cause for his absence when suit is called on for hearing. It may, however, be mentioned that the lower court records were not available and the original application has remained pending for quite a long time. Mr. Thakur Prasad was not possessing a copy of the relevant order sheet and his only objection to this aspect of the matter was that it the suit was called out and the appellants were found absent then this point would have no force. There cannot be any doubt about the objection of Mr. Thakur Prasad and this order was passed only on the said assumption and the parties were plainly told of the same. 7. From the above discussions I am inclined to take the view that the order dated 6-1-1971 placing the appellants ex parte and fixing the title suit on 19-1-1971 for ex parte hearing was without jurisdiction inasmuch as the absence of the defendant must be at the time when the suit was called out for hearing and that is a condition precedent for fixing it for hearing the suit ex parte. 8. Coming to the findings of the court below that the appellants should have made an application for recalling the order, I may refer to Rule 7 of Order 9. This rule enables a defendant who has been placed ex parte in a case, where hearing the suit ex parte has been adjourned, to appear at or before such hearing to assign good cause for his previous non-appearance and the court can allow him to participate in the proceeding, impliedly setting aside the ex parte order. The underlying principle of this Rule 7 is that until a suit is actually called out and so far as an ex parte decree is not passed, the defendant is entitled to come in and defend the suit. The question is, is a defendant bound to take recourse to the procedure indicated in rule 7? In my view, it is simply an enabling provision. In a case where the defendant wants to set aside the order placing him ex parte and be relegated to a stage at which the suit was, when he absented himself, then he has to assign good cause for his previous absence. In my view, it is simply an enabling provision. In a case where the defendant wants to set aside the order placing him ex parte and be relegated to a stage at which the suit was, when he absented himself, then he has to assign good cause for his previous absence. But if he merely wants to take part in the proceedings at the stage where he appears, it is not necessary to get the previous order placing him ex parte, set aside. The Supreme Court in the case of Arjun Singh V/s. Mohindra Kumar ( AIR 1964 SC 993 ) after resolving the conflicting views of different High Courts, has clearly settled the law by holding that Rule 7 does not mean that the defendant cannot be allowed to appear at all if he does not show good cause for his nonappearance on the date of hearing. All that the rule means is that it cannot be relegated to the position he would have occupied if he had appeared. The interlocutory proceeding of the type provided under Order 9 Rule 7 is not of the kind which can operate as res judicata, so as to bar the hearing on the merits of an application under Rule 13. The latter is a specific statutory remedy for setting aside an ex parte decree. 9. The obvious result of these discussions is that the order dated 6-1-1971, itself being without jurisdiction, there was no necessity for the appellants to explain their absence for that day. The further proceedings in the suit in pursuance of the said order dated 19-1-1971 was merely a follow up action and had the defendants-appellants appeared they could have participated in the ex parte proceeding thenceforth. The failure of the appellants, therefore, to assign sufficient cause for their absence on 19-1-1971 is, therefore, wholly immaterial as that would not debar them in law to wait till the ex parte decree was passed, against which an appeal is provided under Order 43 Rule 1. 10. For the reasons discussed above, I would set aside the order of the court below and allow the appeal, subject, however, to the observations made above regarding the order dated 6-1-1971 and the appellants paying a sum of Rs.55/- to the learned counsel appearing for the respondents within a period of two weeks from today.