Law: Civil Procedure Code (V of 1908)

Section: O. IX, r. 6 & O. XVII, r. 1, 115

Civil Procedure Code (V of 1908) O. IX, r. 6 & O. XVII, r. 1-Ex parte order against defendant Defendant proceeded against ex parte not debarred from appearing and participating in further proceedings-Defendant making appearance on adjourned date should be marked present-Case transferred by administrative order from one Court to another whilst ex parte proceedings pending against defendant-Defendant entitled to notice after transfer-Notice not given-Proceedings set aside in revision Civil Procedure Code (V of 1908), S. 115. According to law the ex parte order against the defendants did not mean that they could not participate in the further proceedings of tile case. They could not be considered to be dead in relation to the future proceed ings. A party cannot be stopped from participating in the proceedings simply because of its non-appearance on the first or some adjourned hear ings. A party proceeded against ex parte may apply under rule 7 of Order IX, C. P. C. for setting aside the ex parte order and if the trial Court is satisfied that good cause has been shown then the ex parte order may be set aside. Even if no such application is made and no good cause is shown for setting aside the ex parte order that does not mean that the defendant proceeded against ex parte is debarred from appearing and participating in the further proceedings. All that what the provision as contained in rule 7 of Order IX requires is that in case of good cause having been shown the ex parte order may be set aside but there is no provision whereby an absentee defendant cannot appear and participate in the adjourned proceedings. The whole scheme of the Code provides for substantial justice to be done after giving full opportunity to the parties to the suit. In the present case it is admitted on record that the petitioners and respondent No. 3, all submitted their written statement together on 19-11-1963, but in spite of that petitioners Nos. 1 and 2 alone were marked present while the remaining were shown absent on account of the ex parte order against them. As discussed above there was nothing in law to prevent them from appearing and participating in the adjourned proceedings.…