JUDGMENT 1. - The present revision petition has been filed against the order dated 24.7.1997 passed by learned Civil Judge (Junior Division) and Judicial Magistrate, 1st Class (West), Bhilwara in case No. 93/95 (Rajendra Kumar v. Subrati Khan) whereby the application of the defendant-revisionist filed under Order 9, Rule 7, Civil Procedure Code was rejected. 2. Although the present revision is posted today for admission yet with the consent of the learned counsel for the parties I would like to dispose it of on merits. 3. It is borne out from the record that the learned trial court passed an order to proceed expart against the defendant revisionist on 30.9.1995. The defendant revisionist moved the application under Order 9 Rule 7 Civil Procedure Code to recall the aforesaid order dated 30.9.95 on the next date of hearing i.e. on 16.12.1995 on the ground inter alia that the order to proceed ex-parte dated 30.9.1995 was passed when he was ill and his counsel had gone to attend funeral of his neighbour It is averred in the application that due to the aforesaid facts and circumstances neither he nor his counsel were present in court when the case was called on for hearing on 30.9.1995. The learned counsel for the revisionist has produced before me certified copy of the order sheets of the learned trial court which point out that arguments at length on the application under Order 9, Rule 7 Civil Procedure Code were heard on 2.7.1996 and on 6.3.1997 and thereafter two further dates i.e. 26.4.1997 and 15.7.1997 were given. The application dated 16.12.1995 moved by the defendant - revisioriist under Order 9, Rule 7 was rejected on 24.7.1997. 4. It is strenuously urged by the learned counsel for the revisionist that when the argument had been heard on the application on 2.7.1996 and again on 6.3.1997 the presence of the defendant - revisionist or his counsel was not required as observed in the order impugned by the learned trial court. On the contrary, it is urged by the learned counsel for the non-petitioner Mr. Singhvi that at first the arguments were raised by the learned counsel for the parties before the learned trial court on 2.7.1996 and when the Presiding Officer, who heard the arguments was transferred, again the arguments were advanced before the succeeding Presiding Officer on 6.3.1997. On the contrary, it is urged by the learned counsel for the non-petitioner Mr. Singhvi that at first the arguments were raised by the learned counsel for the parties before the learned trial court on 2.7.1996 and when the Presiding Officer, who heard the arguments was transferred, again the arguments were advanced before the succeeding Presiding Officer on 6.3.1997. In feeble voice the learned counsel for the non-petitioner tried to emphasise that although the arguments had been heard on 6.3.1997 yet the presence of the revisionist or his counsel on the date of the order i.e. 24.7.1991, was required. 5. Having given my thoughtful consideration to the rival contentions raised at the Bar. I am of the view that there is substance in the argument raised by the learned counsel for the revisionist. I am of the opinion that once the arguments had been heard by the learned trial court on 6.3.1997 on the application moved under Order 9 Rule 7 CPC, the presence of neither the revisionist, nor his counsel was required on the date of order i.e. on 24.7.1997 and the learned trial court should have passed the order on merits. 6. I have also gone through with the reasons given by the learned trial court for not believing the grounds taken by the defendant-revisionist in the application under Order 9 Rule 7 Civil Procedure Code for recalling the expart order dated 30.9.1995. I am of the view that the reasons given by the learned trial court are to be examined in the light whether the defendant-revisionist is diligently prosecuting the case or not. It is revealed from the record that the defendant-revisionist has challenged the temporary injunction order passed in favour of the plaintiff-non-petitioner by way of filing an appeal, which is pending. In these circumstances I see no reason only why the defendant-revisionist would deliberately and willfully remained absent on 30.9.1995 when he is diligently and with vehemence prosecuting his case. He would not be benefited in any way in remaining absent on 30.9.1995 and in this view of the matter the learned trial court has committed jurisdictional error in raising a presumption against the defendant-revisionist. However, it should not be lost sight of that for non-appearance of the defendant-revisionist on 30.9.1995 before the learned trial court the plaintiff-non-petitioner has suffered inconvenience. However, it should not be lost sight of that for non-appearance of the defendant-revisionist on 30.9.1995 before the learned trial court the plaintiff-non-petitioner has suffered inconvenience. I am of the view that for the inconvenience suffered by the non-petitioner can be easily compensated by way of awarding costs. 7. Looking into totality of the facts and circumstances of the case the order dated 30.9.1995 proceeding ex-parte against the defendant-revisionist deserves to be set-aside subject to deposit of costs of Rs. 500/- by the defendant-revisionist which is to be paid to the plaintiff-non-petitioner. 8. As a result of aforementioned discussion, the order impugned dated 24.7.1997 passed by the learned trial court is hereby set-aside and the instant revision petition is allowed. The order to proceed ex-parte against the revisionist dated 30.9.1995 is also set-aside. The leaned trial court is now to proceed with the suit on merits provided Rs. 500/- cost is deposited before it by the defendant revisionist-within six weeks from today. It is made clear that in case the defendant-revisionist fails to deposit costs of Rs. 500/- within the time granted, the order to proceed ex-parte to against him dated 30.9.1995 would automatically revive. The learned trial court is to decide the suit expeditiously in case the cost is deposited within time. Cost of this revision will abide the result of the suit.Petition allowed. *******