JUDGMENT 1. - I have heard the learned counsels for the parties in this second appeal. 2. It is quite clear that the defendant-tenant in the ejectment suit filed by the respondent had applied on April 9, 1986, under Order 6 Rule 5 Civil Procedure Code for directing the respondent to furnish further and better particulars in relation to some matters involved in the suit and the application was decided by the Addl. Civil Judge on April 14, 1986 and the respondent was directed to furnish further and better particulars only on the point as to whether the tenancy was oral or in writing. The case adjourned to April 19, 1986. for furnishing of better particulars by the respondent. On April 19, 1986, the plaintiff and his counsel remained absent, while the defendant's consent was present, The suit was, therefore, dismissed for default by the Addl. Civil Judge. On April 25, 1986, the plaintiff made an application for restoration of the suit. This application was contested on behalf of the defendant-appellant. The Addl. Civil Judge by his order dated May 19, 1986, restored the suit subject to payment of Rs. 20/- as cost. The case was adjourned to May 24, 1986. for payment of costs. On this date, the counsel for the respondent was present. Shri Shyam Lal Samnani, counsel for the appellant, appeared and he told the Court that the appellant had taken away file from him and therefore the notice of the restoration of the suit may be given to the appellant personally. Shri Samnani did not receive the costs. Shri Samnani pleaded no instructions on behalf of the defendant and the case preceded ex paste. It may be mentioned that the respondent hid also filed better particulars. Since the counsel for the appellant represented to the Additional Civil Judge that he had no contract with the appellant and pleaded no instructions, the Court proceeded ex parte against the appellant and the case was adjourned for August 3, 1986, for recording ex parte evidence. As August 3, 1986 was holiday, the matter was taken up on August 4, 1986. On that date, the plaintiff and his counsel were absent and the suit was dismissed for default, It was later on restored and after recording ex parte evidence, the suit was ultimately decreed for arrears of rent and ejectment against the appellant. As August 3, 1986 was holiday, the matter was taken up on August 4, 1986. On that date, the plaintiff and his counsel were absent and the suit was dismissed for default, It was later on restored and after recording ex parte evidence, the suit was ultimately decreed for arrears of rent and ejectment against the appellant. The appellant filed Civil First Appeal No. 225/1986, before the District Judge. In the memo of appeal presented therefore the District Judge, all that was stated was that when the counsel for the appellant pleaded no instructions, the Court should have issued notice to the appellant regarding restoration of the suit. The ex parte decree was also attacked on its merits stating that the tenancy was not established and the trial Court committed error in passing the decree for arrears of rent and ejectment. The appeal way dismissed by the Addl. District Judge No. 6, Jaipur City, Jaipur on February 15, 1989. The Addl. District Judge held that to the first appeal against the ex parte decree, he cannot consider the grounds which are relevant to an application under Order 9 Rule 13 CPC. On merits. it was held that plaintiff had proved his case and the suit was rightly decreed. The defendant-tenant has come in second appeal before this Court. 3. The learned counsel for the appellant referred to the decision in Gangadhar Bhatt v. Srikant, (AIR 1981 Kant. 35), in which it was held that the appellate Court has power to examine the question as to whether the trial Court was not right in proceeding to decide the case ex parte. The learned Judge of the Karnataka High Court agreed with the view of the Bombay High Court in Jethala Girdhar v. Varajlal Bhaishankar, AIR 1972 Bom. 267 which followed the Madras High Court in Sadhu Krishna Ayyar v. Kuppan Ayyangar (1907 ILR 30 Mad 54). In Karnataka case, the trial Court had set down the snit for real on August 22, 1978. On that date, the trial Court received a telegram from the counsel for the defendant seeking adjournment on the ground that the counsel was ill The trial Court without granting adjournment proceeded with the trial of the suit in the absence of the defendant's counsel and the defendant and passed an ex parte decree. The defendant preferred first appeal. On that date, the trial Court received a telegram from the counsel for the defendant seeking adjournment on the ground that the counsel was ill The trial Court without granting adjournment proceeded with the trial of the suit in the absence of the defendant's counsel and the defendant and passed an ex parte decree. The defendant preferred first appeal. The first appellate Court was of the view that the trial Court was not justified in proceeding ex parte against the defendant when the illness of the defendant's counsel was pleaded as a ground for adjournment and was not disputed either by the plaintiff or his counsel The Karnataka High Court upheld the view taken by the first appellate Court. On facts, the decision in Karnataka case is very much distinguishable from the facts of the present case. In the present case, there was no request from the defendant or his counsel for adjournment of the case on any sufficient ground so as to lead the Court to examine the question whether there was sufficient ground for adjournment. The next decision relied upon is in the case of Pragilal Karansing v. Khilawansing (AIR 1946 Nag 393) . This decision seaks of two concurrent remedies available to a defendant when ex parte decree was passed against him. Either the defendant can apply under Order 9 Ruiz 13. Civil Procedure Code to set aside, the decree or he has option to file an appeal against the decree, or to file an application for review of the judgment. It was stated that where no evidence has been led and the evidence led by the plaintiff has not been tested by cross-examination and the case turns upon evidence no useful purpose would be served by filing an appeal against an ex parte decree. This decision hardly assists the appellant. Last decision relied upon is in Kalindri Devi v. Balloo ( AIR 1984 All. 9 ). In Smt. Kalindri Devi's case (Supra), an ex parte decree was passed by the trial Court after the defendant's counsel had reported -no instructions" and did not participate in further hearing, although, he remained present in the Court. The defendant's husband, who was her perokar, was also present, but he took no steps for further defence of the case, although the trial Court did also grant some short time to him to properly instruct some counsel. The defendant's husband, who was her perokar, was also present, but he took no steps for further defence of the case, although the trial Court did also grant some short time to him to properly instruct some counsel. The trial Court decreed the suit against the appellant who was defendant No. 5 stating it to be a contested and decreed the suit against other defendants ex parte. No application for setting aside the ex parte decree was made, but an appeal was filed. The first appellate Court held that the appellant could not be deemed to have been absent inasmuch as her husband was present and her counsel continued to remain present. The defendant went in second appeal against the ex parte decree before the High Court. I, was held that as the counsel for the defendant had not applied for withdrawal from the case and under Sub-rule (2) of Rule 4 of Order 3 of the Civil Procedure Code, his power to represent, that is to say, to appear, act and plead on behalf of the defendant-appellant in Court, must be deemed to have continued. Reliance was placed on behalf of the defendant- appellant in that case upon a decision of the East Punjab High Court in (6) Ruprani Devi v. Christopher Southern Lewis (AIR 1949 East Punjab 86) wherein in a case where the counsel pleaded no instructions, it was held to mean that he refused to appear for the defendant, although he could. The defendant was therefore, technically absent. The learned Judge who decided Kalindri Devi's case (Supra) observed that the basic question was whether the defendant-appellant had any sufficient cause or good reason for not appearing at the hearing of the suit on the date fixed. It was held that in the appeal against ex parte decree no cause whether good or bad, or indifferent was even suggested. Therefore, the ex parte decree could not be set aside. On the merits of the ex parte decree, there was no error and therefore, the appellant's second appeal was dismissed. 4. In the instant case, the important feature to be noticed is that on May 19, 1986. when the application for restoration of the suit was being argued, the counsel for the defendant-appellant was A so present and he argued on behalf of the defendant contesting the restoration of the suit. 4. In the instant case, the important feature to be noticed is that on May 19, 1986. when the application for restoration of the suit was being argued, the counsel for the defendant-appellant was A so present and he argued on behalf of the defendant contesting the restoration of the suit. A reply to the application for restoration was also filed on behalf of the defendant on April 26, 1986. The suit was restored in the presence of the defendant's counsel and the next date fixed was May 24, 1986, for payment of costs which had been imposed on the plaintiff as a condition for restoration. The defendant shall be presumed to have knowledge of the next date, May 24, 1986 when his counsel was very much present on May 19, 1986 and argued against restoration of the suit. No cause whatsoever was assigned in the memo of appeal as to why the appellant did not appear himself on May 24, 1986 and why he took away the file. In the absence of such cause being assigned, there is no question of setting aside the ex parte decree and remanding the case. 5. On merits of the appeal against ex parte decree suffice it to say that both the courts below have found that the defendant was tenant of the plaintiff and that he defaulted in payment or tender of the rent from November 1982. The suit of the plaintiff-respondent was rightly decreed for arrears of rent and ejectment. 6. This second appeal has no merit in it and it is hereby dismissed.Appeal dismissed. *******