JUDGMENT Hon’ble Suneet Kumar, J.—Heard learned counsel for the parties. 2. The respondent/landlord filed an application under Section 21 (1)(a) of Act No. 13 of 1972 for release of the shop in dispute. The application was allowed ex parte on 12 December 2011 by the Prescribed Authority. Aggrieved, petitioner made an application under Order 9 Rule 13 of Code of Civil Procedure stating that he could not appear on the date of hearing for the reason that he was trying to settle the dispute outside the Court with the respondent/landlord. The settlement could not be reached, therefore, he did not appear on the date fixed for hearing. The Authority by order dated 10 April 2012 rejected the application noting that the application was not maintainable as the release application was decided on merits. Aggrieved, by the order dated 10 April 2012 rejecting the application under Rule 13 of Order 9 and the decree, the petitioner has approached this Court in writ jurisdiction. 3. The submission of the learned counsel for the petitioner is that on 25 October 2011, the evidence of the petitioner was closed, however, the Court permitted the petitioner for filing the evidence on 18 November 2011. On 18 November 2011 the petitioner appeared, but, the date was adjourned for 22 November 2011. On the said date the petitioner did not appear taking a plea that he was trying to settle the matter out side the Court. On 22 November 2011 the case was directed to come up for argument on 1 December 2011, finally the release application was decided on merits on 12 December 2011. The Court below upon noting the aforementioned dates and the conduct of the petitioner rejected the application to recall the judgment and decree holding that since the application was decided on merits, the application under Order 9 Rule 13 is not maintainable. 4. It is contended on behalf of the petitioner that the petitioner could not appear after 18.11.2011 on a bona fide belief that a compromise would be effected between the parties, therefore, the petitioner may be given an opportunity and the matter be decided upon rehearing the petitioner. 5. In an application under Order 9 Rule 13 to recall an ex parte judgment and decree, the petitioner would have to establish that he was prevented by any sufficient cause from appearing when the case/suit was called on for hearing. 5. In an application under Order 9 Rule 13 to recall an ex parte judgment and decree, the petitioner would have to establish that he was prevented by any sufficient cause from appearing when the case/suit was called on for hearing. It is admitted that the petitioner was participating in the proceedings and appeared on 18 November 2011, thereafter, the petitioner did not appear on the pretext that effort was being made to settle the matter outside the Court, therefore, the petitioner was aware of the date next fixed in the case for 22 November 2011. On the said date the petitioner did not appear on the plea of negotiation and settlement. But it is urged that no settlement could be arrived at between the parties, therefore, it was incumbent upon the petitioner to have enquired from his counsel the next date fixed on 22 November 2011, the date of which the petitioner admittedly had knowledge. The Court fixed 1 December 2011 for argument and finally the release application was decided on 12 December 2011. 6. This rule requires an application by the defendant and if the defendant satisfies the Court that (i) the summons was not duly served; or (ii) he was prevented by any sufficient cause from appearing when the suit was called out for hearing, the Court will set aside the decree passed against him and appoint a day for proceeding with the suit. 7. The language of the rule is plain, express and unambiguous and the grounds mentioned therein are exhaustive. 8. As provided in Rule 6, the suit may proceed ex parte against the defendant only when it is proved by the plaintiff to the satisfaction of the Court that the defendant did not appear even though the summons was duly served. In that case, an ex parte decree may be passed against him. Therefore, if the defendant satisfies the Court that the summons was not duly served upon him, the Court must set aside the ex parte decree passed against him. 9. The expression “sufficient cause” has not been defined anywhere in the Code. It is a question to be determined in the facts and circumstances of each case. The words “sufficient cause” must be liberally construed to enable the Court to exercise powers ex debito justitaie. 9. The expression “sufficient cause” has not been defined anywhere in the Code. It is a question to be determined in the facts and circumstances of each case. The words “sufficient cause” must be liberally construed to enable the Court to exercise powers ex debito justitaie. A party should not be deprived of hearing unless there has been something equivalent to misconduct or gross negligence on his part. Necessary materials should be placed on record to show that the applicant was diligent and vigilant. Improper advice of advocate may be a good ground to set aside ex parte decree but it cannot be accepted as a sufficient cause in all cases. Conversely, if “sufficient cause” is not shown, ex parte decree cannot be set aside. “The right and this duty is a sine qua non of judicial procedure. An order setting aside ex parte decree is judicial, it must be supported by reasons. (Refer: Mahesh Yadav v. Rajeshwar Singh, (2009) 2 SCC 205) 10. If there are delaying tactics and non-cooperation on the part of the party, he cannot seek indulgence of the Court. The test to be applied is whether the party honestly intended to remain present at the hearing of the suit and did his best to do so. 11. In Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 , Supreme Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a “good cause” and “sufficient cause” is that the requirement of a good cause is complied with on a lesser degree of proof than that of a “sufficient cause”. 12. When an application for setting aside ex parte decree is made by the defendant, the Court should consider whether the defendant was prevented by “sufficient cause” from appearing before the Court when the suit was called out for hearing. “Sufficient cause” is a question of fact. 13. 12. When an application for setting aside ex parte decree is made by the defendant, the Court should consider whether the defendant was prevented by “sufficient cause” from appearing before the Court when the suit was called out for hearing. “Sufficient cause” is a question of fact. 13. The following causes have been held to be sufficient for the absence of the defendant; (1) bona fide mistake as to the date of hearing; (2) Late arrival of a train; (3) sickness of the counsel; (4) fraud of the opposite party; (5) mistake of pleader in noting wrong date in diary; (6) negligence of next friend or guardian in case of minor plaintiff or defendant; (7) death of relative of a party; (8) imprisonment of party; (9) strike of advocates; (10) no instructions pursis by a lawyer, etc. The following causes, on the other hand, have been held not to be sufficient for absence of the defendant for setting aside an ex parte decree; (1) dilatory tactics; (2) bald statement of noting wrong date in diary; (3) negligence of party; (4) counsel busy in other Court; (5) suit of high valuation; (6) absence of defendant after prayer for adjournment is refused; (7) hardship of defendant; (8) absence to get undue advantage; (9) mere thinking that the case will not be called out; not taking part in proceedings, etc. 14. The Supreme Court in Parimal v. Veena, (2011) 3 SCC 545 , was considering the scope and ambit of an application under Order 9 Rule 13. In the facts of that case, the trial Court recorded that the notice of the petition was served upon the applicant who refused to accept the notice, subsequently, when served the applicant again refused to accept the notice thereafter, the notice was published in a daily and was sent to the applicant at her address. 15. In these circumstances, the application under Order 9 Rule 13 filed by the applicant on the plea that she was not residing at the said residence but was residing with her brother. The trial Court rejected the application. The Supreme Court held that the presumption of publications stood rebutted by a bald statement made by the applicant that she was living at a different address with her brother. The trial Court rejected the application. The Supreme Court held that the presumption of publications stood rebutted by a bald statement made by the applicant that she was living at a different address with her brother. The Apex Court reversed the order passed by the High Court, as the application was not considered in the right perspective regarding substituted service. The Court observed as follows: “However, in case the matter does not fall within the four corners of Order 9 Rule 13 CPC, the Court has no jurisdiction to set aside an ex parte decree. The manner in which the language of the second proviso to Order 9 Rule 13 CPC has been couched by the legislature makes it obligatory on the appellate Court not to interfere with an ex parte decree unless it meets the statutory requirement.” 16. Material date for deciding “sufficient cause” for non-appearance by the defendant is the date on which ex parte decree was passed and not his previous negligence or past defaults. In G.P. Srivastava v. R.K. Raizada, (2000) 3 SCC 54 , the Supreme Court observed: “The ‘sufficient cause’ for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstance anterior in time. If sufficient cause’ is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings initiated against him, he cannot be penalized for his previous negligence which had been overlooked and thereby condoned earlier.” 17. Since the Code makes specific provision for setting aside ex parte decree, no inherent power can be exercised to set aside such decree. 18. As Rankin, L.J. stated, “I entirely dissent from the view that, if no case is made out under that rule (Rule 13), it is open to the learned Judge to enlarge the rule by talking about Section 151.” (Refer: Manohar Lal v. Seth Hira Lal, AIR 1962 SC 257, K.B. Dutt v. Shamsuddin Shah, AIR 1930 Cal 488). 19. Remedy against an ex parte decree has two options (1) to file a regular appeal (2) to file an appeal for setting aside the order in terms of Order 9 Rule 13. Both the proceedings are available simultaneously. 20. In Bhanu Kumar Jain v. Archana Kumar and another, (2005) 1 SCC 787 , the Supreme Court held as follows: “26. Remedy against an ex parte decree has two options (1) to file a regular appeal (2) to file an appeal for setting aside the order in terms of Order 9 Rule 13. Both the proceedings are available simultaneously. 20. In Bhanu Kumar Jain v. Archana Kumar and another, (2005) 1 SCC 787 , the Supreme Court held as follows: “26. When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial Court merges with the order passed by the appellate Court, having regard 9 to Explanation appended to Order 9 Rule 13 of the Code a petition under Order 9 Rule 13 would not be maintainable. However, Explanation I appended to the said provision does not suggest that the converse is also true.” 21. Applying the principles of law upon the facts of the case. The petitioner in the application has not made any averment for his absence from 22 November 2011 to 12 December 2011. The application under Order 9 Rule 13 was moved on 5 January 2012. It would appear that the absence of the petitioner on the date of hearing was deliberate and willful without sufficient cause, the plea that the petitioner was negotiating with respondent/landlord was not acceptable as the entire application is silent as to when the negotiation commenced and the date on which it failed. It is also not the case of the petitioner that under the garb of negotiation, the petitioner was kept in dark, the respondent/landlord proceeded with the case behind the petitioner’s back. 22. In such circumstances, I do not find any merit in the contention of the petitioner. The Court below was not justified in rejecting the application to recall the judgment and ex parte decree merely on the ground that the judgment and decree was passed on merits. 23. For the reasons stated herein above, this Court is not inclined to interfere with the impugned order though for other reasons. 24. The Court below was not justified in rejecting the application to recall the judgment and ex parte decree merely on the ground that the judgment and decree was passed on merits. 23. For the reasons stated herein above, this Court is not inclined to interfere with the impugned order though for other reasons. 24. The amount of rent deposited by the petitioner while filing the present writ petition which was converted from revision shall be paid by the Court below to the respondent within six weeks from the date of service of certified copy of this order. 25. The writ petition is dismissed. No order as to costs. ——————