- (1.) THIS is an application in revision by a defendant in a pending suit. There are three-defendants in all. Summonses were issued to all of them by the trial court but only two of them put in appearance in the suit. The present applicant remained absent. The court ordered the case to proceed 'ex parte' against him. One of the defendants raised a plea of tenancy rights and an fssue was remitted to the revenue court for decision. The revenue court has sent its decision. When the case was put up before the learned Munsif for hearing the present applicant put in appearance and made an application for setting aside the order directing the case to proceed 'ex parte' against him. His application was not accompanied by an affidavit and the learned Munsif was not satisfied that there were sufficient grounds for his absence on the previous dates. He rejected that petition. Against this order this revision has been filed. The learned counsel for the applicant contends that the learned Munsif had no-jurisdiction to reject his petition.
(2.) IN this connection reference may be made to O. 9, R. 7, Civil P. C. , which runs as follows: "where the Court has adjourned the hearing of the suit 'ex parte' and the defendant, at or before such hearing, appears and assigns good-cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. " It appears from a mere perusal of this rule that the applicant has to show good cause for his previous non-appearance and it is only on such cause being shown that the court may allow him to put in appearance subject to payment of such costs as the Court may consider proper. Learned counsel for the applicant refers to the last portion of this rule viz. that the defendant be heard "as if he had appeared on the day fixed for his appearance" and contends that this rule applies only when a party wants the Court to go back upon some proceedings that have already taken place and re-quires it to go through the said proceedings over again. He argues that if a defendant wants to proceed from the stage at which he appears and does not require the Court to retrace its steps, this rule will not apply and that such a defendant will have an absolute right without obtaining Court's permission to take part in the proceedings from the stage they have reached. I agree that this interpretation is correct. But by adopting this interpretation the applicant gains nothing because, in the present case, the stage for filing the written statement was over and the issues had been framed long ago. What the applicant now wants is that he may be permitted to file a written statement and if new pleas are taken fresh issues may be framed. As stated above the other two defendants are already contesting the suit. Therefore, the only object of filing a fresh written statement could be to raise new pleas. This means that the proceedings that have taken place during the last two years have to be brushed aside and the parties are to be relegated to the position which they occupied two years ago. If he also raises a plea of tenancy the case will have to be sent back again to Revenue Court. Rule 7 is, therefore, applicable and unless the applicant shows good cause for his absence on previous dates he has no right to ask the Court to set aside the order directing the case to proceed 'ex parte' against him.
(3.) LEARNED counsel has cited the case -- 'bhagwat Prasad v. Muhammad Shibli', AIR 1922 All 110 (A ). From a perusal of the judgment of that case it appears that the trial court did not seem to have recorded any finding to the effect that the applicant had failed to assign a good cause for his non-appearance. In the circumstances the case is clearly distinguishable from the present one. Moreover this case contains no reference to O. 9, R. 7, Civil P. C. The headnote mentions Order 9 rule 11 although there is no reference even to Order 9, Rule 11 in the body of the judgment.;