RAM PAL Vs. CHANDU RAM

JUDGEMENT

(1.) VIDE Order dated 12.4.2000 the case was ordered to be put up today for final disposal. I have heard the learned counsel for the parties.

(2.) BY the impugned order dated 7.12.95 the learned trial court has dismissed the petitioners' application filed under Order 9 Rule 7 C.P.C. The facts precisely necessary for the controversy are that a suit was filed by the plaintiff/non-petitioner which was fixed on 9.10.95 for service of the defendants, on which day the defendant No. 2 appeared and taking the service of other two defendants petitioners to be sufficient, the case was ordered to proceed ex-parte against them and the case was put up on 10.10.95 for written statement. A perusal of the order dated 9.10.95 shows that since the defendant No. 2 was being represented by the counsel Shri Fateh Chand, and since it was not absolutely clear as to whether the services of the summons on the petitioner defendants was sufficient or not, in good faith the learned counsel gave out that if the Court feels this service to be sufficient, he proposes to give an undertaking to file Vakalatnama on behalf of all these defendants also. However, the learned trial court, instead of taking this request in bona fide took an exception to it as if the learned counsel was playing smart and therefore, directed the case to proceed ex-parte. Be that as it may.

(3.) I have gone through the impugned order and having heard the learned counsel for the parties, I find that since passing of the order directing the suit to proceed ex-parte, the case has not registered any progress whatever and in any case till the petitioners appeared on 19.10.95, the suit did not register any progress whatever. It is established law that even if the suit is ordered to proceed ex parte, after the defendants' appearance, then even without having the order directing the suit to proceed ex parte set-aside the defendants can participate in the proceedings from the stage when they appear. In this view of the matter since the defendants petitioners can very well appear and take part in the proceedings of the suit from the stage of 10.10.95 by which date the stage of filing their written statement had not been crossed, the defendants petitioners can very well file their written statements and can very well participate in the entire subsequent proceedings of the suit, existence of the order directing the suit to proceed ex parte is merely of technical significance, consequently if that is not set-aside, it is of no significance against the petitioners and would not occasion any substantial failure of justice to the petitioners.