P L D 1961 (W (PLP)

5. The following authorities, however have laid down that a defendant who is duly served with summons of a_ suit but has made default in appearance and against whom the Court has decided to proceed ex parte is not entitled to appear and defend the suit at any subsequent stage, as of right and without assigning good cause :‑ (1) Sheikh Farzand All v. Ekadashi A I R 1923 Oudh 177. (2) Gangararn Samandas v. Deoomal Nithalchand A I R 1929 Sind 46. (3) Hariram Rewachand v. Pribhdas Mulchand and others I L R 1945 Kar. 1. (4) Mt. Tulsha Deii v, Sri Krishna A I R 1949 Oudh

59. In these rulings the authorities referred to above which have laid down that the defendant can join the proceedings of a suit at any stage without getting the ex parte order set aside and without assigning any sufficient cause, have been exhaustively dealt with and dissented from.

6. The question really turns on the interpretation of the expression "ex parte" which is used in rule 6 of Order IX, Civil Procedure Code. The expression "ex parte" has not been defined anywhere in the Civil Procedure, Code. It is a Latin expression and means "from one party or side". Its accepted meaning, according to Wharton's Law Lexicon, Fourteenth Edition, is "a proceedings by one party in the absence of the other." In P. Ramanatha Aiyar's Law Lexicon, 1940 edition, the definition of "ex parte" is given as follows :-- "Of the one part; from one party (Tomlin's Law Dic.) This term is,applied in law to a proceeding by one party in the absence of, and without notice to, the other." "Ex parte proceedings" is defined in this Law Lexicon as :‑ "A proceeding at the instance and for the benefit of one part only and without notice to or contestation by any person adversely interested." Having regard to the meaning of the expressions "ex parte" and "ex parte proceeding", it is clear to me that after the Court has decided to proceed "ex parte" against a defendant it is only the plaintiff who is to be heard in the suit and not the defendant.

7. The Code of Civil Procedure, I think, is a compre hensive Code. When a suit is duly instituted then in view of section 27 and Order V, rule 1, Civil Procedure Code, a summons is issued to the defendant to appear and answer the claim on a date to be therein specified, and a defendant to dwhom a summons has been issued under sub‑rule (1) of Order V, rule 1 may appear‑ (a) in person, or (b) by a pleader, duly instructed and able to answer all material questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions. Order V, rule 3, Civil Procedure Code, lays down that where the Court sees reason to require the personal appearance of the defendant, the summons shall order him to appear in person in Court on the day therein specified. The nature of the defendant's appearance m obedience to the summons is best explained by the language of Form No. I prescribed in the First Schedule Appendix B for summons to a defendant. That form directs the defendant to appear in person or by, a pleader duly instructed and able to answer all. material questions relating to the suit or who shall be accompanied by some person able to answer all such questions. It also gives him notice that in default of his appearance on the date mentioned in the summons the suit will be heard and determined in his absence. Order IX relates to the "appearance of parties and consequence of non appearance." Order XVII relates to "adjournments." Both these Orders are comprehensive as regards the appearance of parties, and consequence of their non‑appearance. Order IX deals with the appearance of the parties on the first date of hearing, whereas Order XVII deals with the appearance of the parties on the adjourned dates of hearing. Under Order XVII, rule 2, C. P. C. when a party to the suit fails to appear on the date fixed, the Court is empowered to proceed and to dispose of the suit in one of the modes directed in that behalf by Order IX or to make such other order as it thinks fit. In order to find out the con sequence of non‑appearance of a party at the adjourned dates of hearing, the, Court is required to follow the procedure laid down in Order IX. Order IX, rule I provides that on the day fixed in the summons for the defendant to appear answer, the parties shall be in attendance at the Court‑house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court. There can be no doubt that this provision of law requires the parties or their pleaders to be in attendance at the Court‑house on the date fixed in the summons when the defendant is required to appear and answer. It further provides that the suit shall be heard on the date fixed in the summons unless the hearing is adjourned to a future date.

8. Order IX, rule 6, Civil Procedure Code, provides that where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then if it is proved that the summons was duly served, the Court may proceed ex parte. It l obviously means that when the Court decides to proceed ex parte against the defaulting defendant, it is entitled to proceed to hear and to finally dispose of the suit.

9. Now the question which requires determination is whether such an order means that ex parse proceedings are to be taken only on the date on which the defendant has defaulted, or the case is to proceed ex parte on that date as well as the sub sequent dates of hearing. There is nothing in Order IX, rule 6, C. P. C. or elsewhere to suggest that the Court is to take ex parte proceeding only on the date on which the defendant has failed to appear. As soon as the defendant has failed to appear in Court to answer the claim, he forfeits his right to a hearing, and the only method by which he can re‑appear in Court is provided for in Order IX, rule 7, Civil Procedure Code. It reads as follows :‑ "Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non‑appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance." In view of the language used in this rule it is clear to me that the only method by which the defendant can be heard after he has defaulted in appearance, is to appear in Court and assign good cause for his previous non‑appearance. In my opinion, as soon as the defendant defaults in appearance, he is dead for the purpose of putting in appearance in the suit, and even if he physically appears in Court later, his appearance cannot be recognised as appearance for the purposes of the suit. But if he succeeds in satisfying the Court that he had good cause for his previous non‑appearance, then the Court may, upon such terms as the Court directs as to costs or otherwise, revive him and hear him in answer to the suit as if he had appeared on the date fixed for his appearance. It means that for good cause c shown the proceedings taken ex parte against him are washed away in the eye of law and he is placed in the same position retrospectively, as if he had not failed to appear in the Court. But if he is unable to assign good cause for his previous non appearance, then there is nothing in the Code to suggest that he can claim as of right to appear in the midst of the pro ceedings which are being taken against him ex parte and demand that he is entitled to answer and contest the suit. If the intention of the rule‑making authority had been that such a defendant could appear as of right at any stage of the suit after ex parse proceedings had been ordered against him and could participate in the proceedings from that stage, onward, then surely the rule‑making authority would have expressly mentioned it.

10. I have already referred to rule. 3 of Order V, Civil Procedure Code, whereby a Court may require the personal appearance of the defendant, and if the defendant so summoned does not appear before the Court on the date fixed and does not show sufficient cause to the satisfaction of the Court for failing so to appear, he undoubtedly incurs the risk of subject ing himself to all the provisions of Order IX, Civil Procedure Code, applicable to plaintiff's and defendants, respectively, who do not appear. This is clearly provided in rule 12 of Order IX, Civil Procedure Code. Do the rules intend to lay down that if such a person, who' has been ordered to appear in person, does not obey the summons, he can at a later stage put in his appearance and demand as of right to participate in the proceedings? I am sure the answer to this question must be given in the negative. It is more or less a penalty which is imposed on a defendant who fails to appear in Court to answer the suit, and he cannot, therefore, claim as of right to participate in the proceedings at a later stage without assigning good cause for his non‑appearance on the previous date of hearing.

11. Order IX, rule 13, Civil Procedure Code, further confirms the view that sych a defendant cannot participate in the proceed ings at will. This rule reads as follows :‑ "In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside ; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for haring, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: "Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also." It obviously means that in case a decree is passed ex paree against a defendant, he has to satisfy the Court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing.. I have no doubt in my mind that as soon as the Court passess an order to proceed ex parte against a defendant, he is not required to satisfy the Court that he had good cause for .his non‑appearance on the subsequent dates of hearing also, but he has got only to satisfy the Court that on the date of hearing on which proceedings were ordered to be taken ex parte against him, he had good cause for his non‑appearance. If this had not been the intention of the rule, then in that case he would be required to satisfy the Court that he had good cause for his non‑appearance on each and every date of hearing, but this does not appear to be the intention of the rule. The obvious reason is that when proceedings had been taken ex parse, he could not have appeared before the Court as of right on the adjourned dates of hearing and, consequently, he is not required to satisfy the Court that he had good cause for non appearance on those dates.

12. The matter can be looked at from another angle. Do the rules require that after the Court ‑has passed an order to proceed ex parte under Order IX, rule 6, Civil Procedure Code, the Court is required to pass such an order again and again on the adjourned dates of hearing? In my opinion, the Court is not required to pass such orders on the adjourned dates of hearing because the order by which ex parte proceedings have been taken stands, unless it is set aside for good cause shown to the satisfac tion of the Court.

13. In the rulings in which it has been laid down that such a defendant can appear as of right at any subsequent stage; all the relevant rules, if I may say so with respect, were not duly considered. Aston, A. J. C., was the first to consider all the relevant rules on this point in Gangaram Samandas v. Deoomal Nihalchand. He dealt with the Allahabad, Calcutta and Madras view on the subject and dissented from it. There after Justice O'Sullivan considered this matter at length in Hariram Rewachand v. Pribhdas Mulchand and others, in which he reviewed all the previous authorities on the subject and came to the conclusion that such a defendant is not entitled to appear and defend the suit at any subsequent stage as of right and without assigning good cause. I am in complete agreement with the view expressed by O'Sullivan, J. and with the reasons set out by him.

14. The matter again came up for consideration before a Full Bench of the Oudh High Court in Mt. Tulsha Devi v. Sri Krishna. The following two questions had been referred to the Full Bench :‑ (1) Does an ex parte order preclude a defendant from sub sequently appearing and participating in the proceedings from the time of his appearance? (2) Do the provisions of Order IX, rule 7, Civi: Procedure Code permit the passing of an order striking off the defence in default of fulfilment of the terms subject to which the ex parte order is set aside? The learned Judges after dealing with the relevant authorities on the subject answered the first question in the affirmative but answered the second question in the negative.

15. Learned counsel for the petitioners banked upon this authority, and in fact it was the solitary ruling, which he cited before me, he contended that in view of the rule laid down in this ruling the defendants were entitled to participate in the proceedings in spite of the ex parte order. For a moment I could not grasp what the learned counsel for the petitioner was saying. This ruling lays down to the contrary to what the learned counsel for the petitioners was urging before me. It was after some time that he grasped the‑ situation and then he relied on the answer to question No. 2, but in my opinion it has got no bearing whatsoever on the question raised before me by the petitioners. The only question with which I am concerned for the present moment is whether the defendants are precluded from subsequently appearing and participating in the proceedings after the ex parte order has been passed against them. I am not concerned with the question whether the Court could strike off the defence in default of fulfilment of the terms subject to which the ex parte order was set aside. In the present case this question does not arise at all. However, it seems plain to me that the proceedings have been taken ex parte from the date on which the defendants had defaulted in appearance. Whatever proceedings had been taken before that date shall have to be taken into consideration by the Court at the time of the final disposal of the, suit.

16. For the reasons stated above I see no force in this revision petition which is hereby dismissed with costs. A. H. Petition dismissed.