Gokarakonda Venkatasubbiah vs Daliparthi Lakshminarasimham

Wallace, J.—These two Civil Revision. Petitions are presented against the orders of the Lower Court declining to set aside the ex parte

order passed against the petitioner. The petitioner was the 1st defendant in two suits, O.S. No. 11 of 1923 and O.S. No. 32 of 1923. He has

appeared in the suits and put in written statements. On one of the hearing days, namely 27th September, 1923, he was absent and the Court

declared him ex parte."" The evidence for the plain-tiff was adduced on that date and the hearing was adjourned to 13th October, 1923. On that

day the 1st defendant appeared and put in a petition under Order 9, Rule 7, praying that the ex parte order against him may be set aside. The

Lower Court dismissed that petition, and the present Civil Revision Petitions are filed against that order. The decree in the case has not yet been

passed as further trial has been stayed by this Court, so that no question of setting aside an ex parte decree has yet arisen.

The plea put forward by the 1st defendant for his absence was sickness and want of money. His allegations were challenged by the plaintiffs in

the suits and the Lower Court refused to believe these allegations and found that the 1st defendant had not shown sufficient cause for his absence

to justify its setting aside the order under Order 9, Rule 7. The Lower Court was entitled to come to that conclusion, and there is no lack of

jurisdiction or irregular exercise of jurisdiction in its order. On the face of the record, I find there is no reason for interference in revision.

The petitioner, however, has stated that the Subordinate Judge''s view is that he, having been once declared ex parte in the suits, is debarred

from subsequently appearing, even if he was prepared to resume the case from the stage it had reached and not ask that the proceedings which

went on in his absence be cancelled, i.e., it is suggested that the Subordinate Judge''s view is that the ex parte order passed by him on 27th

September, 1923, prevents the 1st defendant from appearing at all again in the suits until and unless that order is set aside and that ex parte

decrees must follow if the plaintiffs have made out any case at all. The respondents to these petitions do not challenge but uphold this view. The

petitioner before me states that all he now wants is to be allowed to put forward his evidence, the suits having merely reached the point at which

the plaintiffs'' evidence has been closed Is he debarred from doing that or is he not ? I have had this point argued before me in order to decide for

the guidance of the Lower Court whether the ex parte order does or does not now bar the petitioner from resuming appearance in the suits at the

stage at which they now are. The point is a novel one and there is an absence of authority on it. But my view is that the petitioner is not so

debarred, in other words, that the ex parte order only covers the period during which the party was actually absent and does not act as a bar to his

subsequent appearance. Respondents contend that this view is opposed to Order 9, Rule 7 ; but I do not think so.

One cardinal principle to be observed in trials by a Court obviously is that a party has a right to appear and plead his cause on all occasions

when that cause comes on for hearing. It follows that a party should not be deprived of that right, and in fact the Court has no option to refuse that

right, unless the CPC deprives him of it. Is there any rule of procedure then which gives power to a Court to say to a party when he appears to

plead his case that it cannot hear him because at the previous hearing he was absent ? I do not so read Order 9, Rule 7. That applies to a party

who wishes to be relegated back to the position which he would have been in if he had appeared at a previous hearing at which he was absent,

and who wishes the proceedings taken in his absence to be taken over again in his presence, so that he may regain the opportunities of cross-

examination, etc., which he lost by his absence. After all "" ex parte "" only means that the party has not been heard because he was absent and the

adjournment of the hearing "" ''ex parte "" in the word''s of Rule 7 applies only to the hearing on the particular day when that hearing and

adjournment "" ex parte "" was made. I do not see any ground for extending its operation to all subsequent hearings of the suit.

The mere physical appearance of a party or his pleader has no special effect on the procedure in the suit. For example, a party who has no

special interest in a particular part of the case being heard and does not intend to take any part in that part of the trial may surely absent himself on

the days when that part of the trial is being heard without incurring as a penalty his total exclusion from the case. He no doubt forfeits any

opportunities he would otherwise have had of taking part in those days'' proceedings, but I cannot see how he would forfeit anything more, or that

he could, by any rule of procedure, be prevented from appearing in future when the part of the suit in which he is interested comes on for hearing.

Mere absence on certain days does not make him ex parte for the rest of the trial but only ex parte for those hearings at which he was absent. He

is not prevented from appearing later and proceeding with the case at the stage at which it then is. His right to come on at that stage would, of

course, depend on the stage at which the trial then stood.

In the present case if the plaintiff had closed his case and the petitioner had been called upon to produce his case and he was absent and

therefore made ex parte as regards the presentation of his case, I take it that he would not be allowed to come on later unless he got the ex parte

order set aside under Order 9, Rule 7. But if the plaintiff had closed his case and the petitioner had not been called upon to produce his case, there

could be no ex parte order against him with reference to his presentation of his case, which had to be set aside. Therefore he could appear and go

on with his case on the adjourned date from the stage at which it stood.

There is a paucity of authority on the point. The learned vakil for the petitioner has drawn my attention to two rulings of the Allahabad High

Court Mannu v. Tulsi (1921) 20 A LJ 39 and Bhagwat Prasad Tewari v. Muhammad Shibli (1922) 20 A LJ 270. They support the view I have

taken. A case reported in Satyendra Nath v. Narendra (1923) 39 C LJ 279, though slightly different on the facts, was decided on the same

principle. With these remarks, I dismiss these petitions with costs, one set to each plaintiff.