JUDGMENT Hon’ble Krishna Murari, J.—Heard Sri Rameshwar Prasad Agarwal for the petitioner and Sri Anupam Kulshrestha appearing for the contesting respondent. 2. Undisputed facts are that the plaintiff-petitioner filed a suit seeking prohibitory permanent injunction to restrain the defendant-respondent not to evict him from the shop in dispute except in accordance with law. In response to the notice and summons, the defendant-respondent put in appearance and filed his written statement. After exchange of pleadings and framing of issues, the defendant-respondent absented on 15.9.1999 and an order to proceed ex parte against him was passed. Subsequently, an application dated 13.1.2006 was filed to recall the said order. The trial Court vide order dated 9.1.2007 allowed the application and recalled the order dated 15.9.1999 to proceed ex parte on payment of Rs. 500/- as costs. The plaintiff-petitioner went up in revision which has also been dismissed. 3. It has been urged by the learned counsel for the petitioner that in the absence of any proper explanation for non appearance on the previous dates, the Courts have wrongly and illegally allowed the application. It has further been submitted that in the absence of any finding about the existence of sufficient or good cause for absence, the orders passed by the Courts below are vitiated and not liable to be sustained. 4. In reply, it has been submitted that since the previous counsel of the defendant-respondent did not inform him about the proceedings and no notice was issued after the case was transferred to other Court as such there was sufficient cause for non appearance and the Courts below have rightly allowed the application. 5. I have considered the arguments advanced by the learned counsel for the parties and perused the record. 6. The recall application was filed by the defendant-respondent on the allegations that the applicant was residing in Pilibhit and his counsel assured him that he will do necessary pairavi and whenever his presence is required, he will be informed. It was further pleaded that the applicant kept on making enquiries from his counsel and it was only on 1.1.2006 he was informed that 19.1.2006 is fixed. However, having found that no satisfactory reply about the progress of the case was given, the applicant came to Bareilly and got the record inspected through another counsel and then came to know about the order dated 15.1.1999. 7. However, having found that no satisfactory reply about the progress of the case was given, the applicant came to Bareilly and got the record inspected through another counsel and then came to know about the order dated 15.1.1999. 7. Both the Courts below have recorded a categorical finding that even though the case was directed to proceed ex parte vide order dated 15.9.1999 but even the plaintiff-petitioner himself had not filed any evidence and his affidavit dated 7.4.1998 was treated to be evidence vide order dated 10.12.2001 and the case was fixed for ex parte hearing but the plaintiff-petitioner did not argue the matter and sought adjournment and since the case is pending for argument and has not yet been finally heard as such it would be in the interest of justice that defendant-respondent be provided an opportunity of participating in the proceedings. 8. From the perusal of record and the impugned judgment, it is clear that the matter remained pending for ex parte hearing but the plaintiff-petitioner took no interest in arguing the matter. It is very well settled that the application under Order IX Rule 7 C. P. C. can be moved at any stage till such time the arguments have not been heard. Reference may be made to the decision of Hon’ble Apex Court in the case of Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 . In the case in hand, the defendant-respondent moved an application before hearing could even start as such it cannot be said that the application was not maintainable. Further, the case set up by the defendant-respondent in the recall application was that he was not informed by the counsel about the development of his case and it was not possible for him to attend the proceedings on every date as he was living in Pilibhit. It is well settled that a litigant is not liable to be penalized for the mistake committed by his counsel. 9. Order IX Rule 7 C.P.C. only requires the defendant to assign good cause for his previous non-appearance. In the present case, the defendant-respondent did show good cause for his previous non-appearance that his counsel did not inform him about the proceedings. 10. 9. Order IX Rule 7 C.P.C. only requires the defendant to assign good cause for his previous non-appearance. In the present case, the defendant-respondent did show good cause for his previous non-appearance that his counsel did not inform him about the proceedings. 10. In view of the above facts and circumstances, no illegality has been committed by the two Courts below in allowing the application filed by the defendant-respondents and the impugned orders do not call for any interference. 11. The writ petition accordingly fails and stands dismissed. ————