GOKARAKONDA VENKATASUBBIAH Vs. DELIPARTHI LAKSHMINARASIMHAM

JUDGEMENT

(1.) These two civil revision petitions are presented against the orders of the lower Court declining to set aside the ex parte order passed against the petitioner. The petitioner was the 1 defendant in two suits, O.S. No. 11 of 1923 and O.S. No. 32 of 1423. He had appeared in the suits and put in written statements. On one of the hearing days, namely, 27 September 1923, he was absent and the Court "declared him ex parte." The evidence for the plaintiff was adduced on that date and the hearing was adjourned to 13 October 1923. On that day the 1st defendant appeared and put in a petition under Order IX, Rule 7, praying that the ex parte order against him may be set aside. The lower Court dismissed that petition, and the present civil revision petitions are filed against that order. The decree in the case has not yet been passed as further trial has been stayed by this Court; so that no question of setting aside an ex parte decree has yet arisen.

(2.) The plea put forward by the 1 defendant for his absence was sickness and want of money. His allegations were challenged by the plaintiffs in the suits and the lower Court refused to believe these allegations and found that the 1st defendant had not shown sufficient cause for his absence to justify its setting aside the order under Order IX, Rule 7. The lower Court was entitled to come to that conclusion; and there is no lack of jurisdiction or irregular exercise of jurisdiction in its order. On the face of the record, I find there is no reason for interference, in revision.

(3.) The petitioner, however, has stated that the Subordinate Judge's view is that he, having been once declared ex parte in the suits, is debarred from subsequently appearing, even if he was prepared to resume the case from the stage it had reached and not ask that the proceedings which went, on in his absence be cancelled, i.e., it is suggested that the Subordinate Judge's view is that the ex parte order passed by him on 17 September 1923 prevents, the 1 defendant from appearing at all again in the suits until and unless that order is set aside and that ex parte decrees must follow if the plaintiffs have made out any case at all. The respondents to these petitions do not; challenge, but uphold this view. The petitioner before me states that all he now wants is to be allowed to put forward his evidence, the suits having merely reached the point at which the plaintiffs evidence has been closed. Is he debarred front doing that or is he not? I have had this point argued before me in order to decide for the guidance of the lower Court whether the ex parte order does or does not now; bar the petitioner from resuming appearance in the suits at the stage at which they now are. The point is a novel one and there is an absence of authority on it. But my view is that the petitioner is not so debarred in other words, that the ex parte order only covers the period during, which the party was actually absent and does not act as a bar to his subsequent appearance. Respondents contend that this view is opposed to Order IX, Rule 7; but I do not think so.