KRISHNA WANTI Vs. SHARMA AND SONS

JUDGEMENT

(1.) THIS is a revision petition against an order passed in the course of a dispute relating to tenancy. The facts are briefly as follows: The tenant in this case who is the respondent before me, brought a suit for the fixation of standard rent on 4-12-1952. The application was subsequently amended to bring it under the new Act of 1952 and the landlord Ram Singh filed his written statement. Issues were framed on merits but before evidence could be recorded Ram singh died. His death took place on 1-9-1953 and after the period of 90 days prescribed by the statute had passed the tenant applied to bring the legal representatives of the defendant on record under order 22, Rule 4, Civil P. C. The representatives appeared In Court on 27-1-1954 and raised objections on the ground that the application was barred by time and the suit had in the meantime abated. The next day the tenant made an application under Order 22, Rule 9, Civil P. C. , for setting aside the abatement of the suit. Notice of this application was issued to the legal representatives of Ram Singh and when the matter came up on 22-3-1954 none of them were present. The Court then passed an order adjourning the case for the plaintiff's evidence which he proposed to hear ex parte. A little later the same day the statement of the tenant was recorded and the abatement of the suit was set aside by an order passed ex parte.

(2.) LATER the same day the petitioner appeared in Court and put In an application under Order 9, rule 7. Civil P. C. , praying that the ex parte proceedings be set aside. At that stage the only proceedings that had taken place ex parte were the proceedings relating to abatement. Notice of this application was sent to the tenant and the matter came up before the Court on 14-4-1954. The order passed on that date may be translated as follows:

(3.) THE learned Sub Judge appears to nave taken a somewhat curious view of the matter, He says--"as the defendant had applied only for the setting aside of the ex parte proceedings In respect of the original application for fixation of standard rent and not for setting aside the ex parte order setting aside abatement, the ex parte order setting aside the abatement cannot be set aside. " this order seems to reveal a complete misapprehension of what ex parte proceedings are and how and in what circumstances they can be set aside. It is, therefore, necessary to deal with this point in some detail. According to law every suit must be heard In the presence of both parties and, therefore, notice of fresh institutions is always sent to the other party. The Court, however cannot compel anyone's attendance and all that is necessary under law is that a party against whom any action is to be taken should have notice of the proceedings against him. If due service of the notice has been effected the Court can proceed to hear the matter even in the absence of the party concerned. For Instance, when a plaint is filed in Court summons are issued to the defendant. The defendant may choose to appear or not. He may choose to appear on one hearing and then absent himself. It is not the duty of the Court to wait for the defendant and adjourn a case to enable him to appear, as long as he has been duly served and knows the nature of the proceedings against him. If the defendant chooses to absent himself the Court will proceed ex parte. This means that the proceedings can be taken to their rightful conclusion in the absence of the defendant. The defendant can, however, at any time appear and continue the proceedings without permission of the Court, but in that case he cannot reopen or object to the proceedings that had already taken place in his absence. He will have to accept all orders passed whether to his detriment or not during his absence. He can, however, make an application to the Court for setting aside these orders on showing that there was "good cause for his previous non-appearance". The Court may then, if satisfied, direct that he "be heard in answer to the suit as if he had appeared on the day fixed for his Appearance" (Order 9, Rule 7, Civil P. C.) But where the absenting party does not wish to challenge any orders passed during his absence he need not make an application under Order 9, Rule 7 and may continue to appear and take part in the proceedings as a matter of right. In that case, however, he will be bound by any adverse orders passed to his detriment on the days when he did not appear in court. A single non-appearance of a party does not disentitle him from appearing subsequently.