KUNJAN Vs. KALLIANI AMMA

JUDGEMENT

(1.) THE lower court is not right in dismissing the petition altogether. Of course the finding of the lower court that the petitioner has failed to assign good cause for his previous non-appearance is unassailable; but that is not sufficient to dismiss the petition filed under o. 9, R. 7, C. P. C. R. 7 provides that if at an adjourned hearing the defendant appears and shows good cause for his previous non-appearance, he may be heard in answer to the suit as if he had appeared on the day fixed for his appearance. This does not mean that he cannot be allowed to appear at all if he does not show good cause. It only means that he cannot be relegated to the position he would have occupied if he had appeared. If he appears on the day to which the hearing of the suit is adjourned, he cannot be prevented from participating in the proceedings at all simply because he did not appear on a previous hearing. This has been decided in Sangaram Singh v. Election Tribunal, Kotah and another (AIR. 1955 S. C. 425 ). THErefore it is clear that the dismissal of the petition by the lower court is not correct.

(2.) WHAT the lower court should have done was to have allowed the defendant to participate in the proceedings and should have considered the case under 0. 8, R. 10 of the Code of Civil Procedure. If the court considered that the case was one in which a written statement should have, been put in, then the consequences entailed by R. 10 should be suffered. And what those consequences were should have been decided by the court in the judicial exercise of its discretion, to meet the ends of justice, which means, in the words of the Supreme Court "justice not only to the defendant and the other side but also to witnesses and others who may be inconvenienced. " Therefore, I set aside the order of the lower court and direct it to rehear the petition in the light of my above judgment. In the circumstances, the petitioner will pay the costs of this revision.