MANORAMABAI XETIE Vs. LIDIA BELINDA SIMOES

JUDGEMENT

(1.) By his order dated 5th October, 1972. the Senior Civil Judge, Quepen, dismissed the application of the defendant/Applicant praying that he be allowed to participate in the further proceedings which were to take place in the suit after an order was passed by the lower Court on 26-7-1972 adjourning the hearing of the suit for proceedings ex parte, as neither the defendant nor her advocate was present.

(2.) It is well settled law that though an order is passed for proceeding with the case ex parte the defendant is entitled to take part in the subsequent proceedings though the defendant is not entitled to take any steps which the defendant would be entitled to take prior to the date on which the order was passed. In other words, the order to proceed ex parte does not disentitle the defendant from taking each and every step which he was entitled to take in subsequent proceedings though it does not relegate him to the position in which he was prior to the order, vis-a-vis the steps that he would be entitled to take prior to the order. Even such relegation to the previous position is possible if good cause is shown for his not being present on the day on which the order is passed by the Court for proceeding ex parte. No cause need be shown if all that the defendant wants is to take part in the subsequent proceedings. It is equally a well-settled principle that the defence should not be unnecessarily barred or that the defendant should be prevented from raising his legitimate defence by way of a penalty for his not having appeared on a particular day.

(3.) If the suit had been disposed ex parte on the day on which the defendant remained absent, there was nothing that the defendant could do because there were no steps left to be taken. In the present case however the suit was adjourned for proceeding ex parte and the interpretation in regard to the provisions contained in Order IX is clearly given by the Supreme Court in Sangram Singh V/s. Election Tribunal, Kotah, 1955 AIR(SC) 425. The position is the same, either the order is passed under O. IX. Civil P. C. or under O. XVII, Civil P. C.