JUDGMENT 1. - This is a defendant's appeal against the judgment and decree of the learned District Judge, Balotra, dated March 18, 1985, by which, he has decreed the plaintiffs' suit ex-parte against the 'Against judgment and decree dated 16-3-1985 passed by the learned District Judge Shri Navrang Ray Jatav defendants for a sum of Rs. 96,751/-, with pendents lite and future interest at rate of 6% p.a. 2. I have heard learned counsel for the parties and have gone through the record. 3. In view of the judgment I propose to pass, I need not state the facts of the case at length. Suffice it so say that the plaintiff Bhoj Mal (respondent No. 1) had filed a suit for money against defendants Peetamber Das and others, on the allegation that the plaintiff and the defendants had carried on a joint venture in the name of Peetamber Das & Co. from April 1, 1981 to July 31, 1981. The parties were partners of this firm and had different shares as stated in para I of the plaint. Plaintiff Bhoj Mal had advanced different amounts to the firm at different times. Out of them, certain re- payments had been made and finally a sum of Rs. 65,260/- including interest remained outstanding against the firm. He further urged that out of the dealings of the firm, the firm had acquired a gross profit of Rs 2,66,092/- and after deducting the expenses, the plaintiff was entitled to a sum of Rs. 40 000/- by way of profit. The defendants did not render accounts nor paid the amounts due to the plaintiff and, therefore. the plaintiff had to file the present suit for recovery of Rs. 1,05,250/- or alternatively, with a prayer that the defendants may be asked to render the accounts and whatever amount is found due, may be directed to be paid to the plaintiff He also prayed that the partnership may be dissolved w.e.f. July 31. 1981 and also prayed for any other relief which he may be found entitled to. 4. Defendants No. 1 and 5 filed separate written statements. Defendant No. 5 who is the son of the plaintiff, admitted the plaintiff's claim where as defendant No. 1 Peetamber Das contested the suit on various grounds. Defendant No. 1 denied the joint venture of partnership and claimed that it was his sole proprietorship. 4. Defendants No. 1 and 5 filed separate written statements. Defendant No. 5 who is the son of the plaintiff, admitted the plaintiff's claim where as defendant No. 1 Peetamber Das contested the suit on various grounds. Defendant No. 1 denied the joint venture of partnership and claimed that it was his sole proprietorship. He, of course admitted that the plaintiff had made certain advances to defendant No. 1, but the same had been repaid and nothing remained due. Defendants No 2 to 4 did not appear despite service, as has been observed by the court-below. The plaintiff moved an application under Order 11, Rule 15, CPC, where upon the defendants were asked to produce the books of accounts before the court on the next date of hearing, i.e., on February 1, 1985. However, the books were not produced and an adjournment was sought on that date On February 16, 1985. defendant No. 1 did not appear nor the books were produced and, therefore, the court directed that the defendant shall not he entitled produce these documents at a later stage and adjourned the case for admission or denial of documents and for framing the issues, to March 15, 1985. On March 15, 1985 again defendant No. 1 did not appear either personally or through his counsel. Therefore, the court directed ex-parte proceedings to be taken against him. Defendants No. 2, 3 and 4 were already placed ex-parte and defendant No. 5 had already filed the written statement admitting the plaintiff's claim. The court further observed that the plaintiff wanted to file a rejoinder, and with the permission of the court, the same was filed on that very day. Then the court further observed that as the defendants were not present and ex-parte proceedings were being taken, the question of admission or denial of the documents did not arise and it proceeded to frame the issues After framing the issues, the court further proceeded to take exparte evidence of the plaintiff The plaintiff Bhoj Mal entered the witness box and closed his evidence. The case was then adjourned to March 16, 1985 for final arguments and on that day, after hearing the learned counsel for the plaintiff, the court passed an ex-pare decree against the defendants, as stated above. Aggrieved of this, defendants Peetambar Das, Shanker Lal, Teja Ram and Chola Ram have come up in appeal. 5. The case was then adjourned to March 16, 1985 for final arguments and on that day, after hearing the learned counsel for the plaintiff, the court passed an ex-pare decree against the defendants, as stated above. Aggrieved of this, defendants Peetambar Das, Shanker Lal, Teja Ram and Chola Ram have come up in appeal. 5. Learned counsel for the appellants has challenged this decree on various grounds, but at the time of arguments, he has confined himself to two contentions. His first contention is that the learned District Judge had wrongly proceeded to take evidence of the plaintiff ex-parte on March 15, 1985 by placing defendant No. 1 ex-parte when the case was fixed on that day only for framing of the issues. It is urged by him that when the case was fixed for framing of the issues, the absence of the defendant was not at all material and the court could have proceeded to frame issues itself as it is the duty of the court to frame the issues and thereafter the case should have been posted for evidence. The defendant could not have expected the court to have framed the issues on March 15, 1985 and place him ex-parte and take the plaintiff's evidence on that very day. Thus, according to the learned counsel, the defendant has greatly been prejudiced by this procedure adopted by the learned District Judge. The second ground raised by him is that the plaintiff's case is not established from the evidence on record. In my opinion, the first contention raised by the learned counsel for the appellants deserves to be accepted and, therefore, I do not propose to go into the second question at this stage. Learned counsel for the respondents of course, tried to support the procedure adopted by the leaned District Judge, but I have not been able to persuade myself to agree with him. 6. I have already detailed the proceedings of the court above. A perusal of Order-Sheet Would go to show that on February 16, 1985, after debarring the defendants from producing, the documents, the court adjourned to case to March 15, 1985 for admission or denial of the documents and for framing issues. On March 15, 1985, therefore, all that could be expected to be done was admission or dental of the documents and framing issues. On March 15, 1985, therefore, all that could be expected to be done was admission or dental of the documents and framing issues. The defendant could not hate presumed that on that day the court would be carrying on any other proceedings except as indicated above. For framing of the issues, the presence of the parties is not at all necessary. It is for the court to frame the issues and therefore, if on 15-3-1985 defendant Peetamher Das was not present, the court could have proceeded to frame the issues, but it could not have plated the defendant ex-parte on that day because, as already stated above, the presence of the defendant on that day was not at all necessary. That being so, the further proceeding of the court to take evidence of the plaintiff ex-parte was also not at all justified. After framing the issues, the court should have adjourned the case to a future date for the evidence of the parties and on such adjourned date the defendant could have participated. By placing the defendant ex-parte on March 15, 1985 itself and taking evidence of the plaintiff on that very day, the court has clearly deprived the defendant from an opportunity of a proper hearing. He could neither cross examine the plaintiff nor could produce his own evidence and, thus, his interest has fulls been jeopardized. Learned counsel for the respondent, of course, urged that the defendant was not present on Feb 16, 1985 also and the Court could have proceeded ex-parte against him on that day because it was an adjourned hearing and O. XVII, R. 2, CPC was applicable and the order specifically placing the defendant ex-parte was not envisaged, it must be deemed that the defendant was proceeded against ex-parte even on Feb 16, 1985 and later on the order placing him ex-parte on Marsh 15, 1985 was a mere formal order. I do not agree with him. In the first place on Feb 16, 1985 also the defendant could not have been placed ex-parte because that date was fixed for producing the documents directed by the court on Jan 25, 1985 and if the documents were not produced, the court rightly debarred the defendant from producing the documents later. I do not agree with him. In the first place on Feb 16, 1985 also the defendant could not have been placed ex-parte because that date was fixed for producing the documents directed by the court on Jan 25, 1985 and if the documents were not produced, the court rightly debarred the defendant from producing the documents later. Thereafter, the case was to be fixed for admission or denial of documents and for framing the issues, the presence of the defendant on that day also was not necessary. He could not have placed the defendant exparte on February 16, 1985 that he was placed ex-parte and, as stated above, the court had no right to do so on that day because the case was only fixed for framing the issues for which the presence of the defendant was not necessary. 7. In these circumstances, the only alternative is to set aside the decree passed ex-parte against defendant Peetamber Das. However, since the decree proceeds on grounds common to Peetamber Das and other defendants appellants, the decree will have to be set aside against all of them, and the court will have to proceed against them a new from the stage at which the case was on March 15, 1985. 8. I, therefore, accept the appeal; set aside the decree passed by the learned District Judge and remand the case back to him to proceed with the suit from the stage on which it was on March 15, 1985. I shall make no order as to costs. However, the full court-fee paid in the appeal shall be refunded to the appellants under section 62 of the Court Fees Act.Appeal Accepted. *******