Shriraammohan (Advocate) 03 September 2009

Effects of exparte

HI all,

Plaintiff filed a suit against three defendants. While in the conduct of the proceedings due to non appearance two of them set exparte. In this instance case, the case was dismissed for default and for restoration of the suit, notice was ordered. Is it necessary for the plaintiff to take notice on defendants/respondents who have been set exparte or is it enough for him to take notice on the defendant who's not been set exparte. Any case laws with respect to this situation. thanking you

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5 Replies

R.R. KRISHNAA (Legal Manager) 03 September 2009

It is safe if you take notice for all the defendants.

Ashima Puri (Advocate) 05 September 2009

The clarification can be sought from the Court itself ordering service on restoration. However, it is pertinent to mention to the court that vide such and such Oredr such and such defendants were treated ex parte

manu (advocate) 06 September 2009

Equivalent Citation: AIR1952All749

IN THE HIGH COURT OF ALLAHABAD

Civil Revn. No. 281 of 1952

Decided On: 03.03.1952

Appellants: Babu
Vs.
Respondent: Dewan Singh and Ors.

Hon'ble Judges:
Desai, J.

Counsels:
For Appellant/Petitioner/Plaintiff: Syed Sadiq Ali, Adv.

Subject: Civil

Catch Words

Mentioned IN

Acts/Rules/Orders:
Civil Procedure Code (CPC), 1908 - Order 9, Rules 3, 4 and 8

Cases Referred:
Brij Lal v. Bua Ram, 10 All LJ 399; Ramji Lal v. Kesheo Ram, AIR 1923 Oudh 55(1); Karora Singh v. Babu Ram, AIR 1952 Pepsu 22; Mool Chand v. Ganga Sahap, AIR 1933 All 522; Ram Chandra Ramaji v. Sahadeo Gopala, AIR 1945 Nag 185

Disposition:
Application dismissed

Case Note:
Civil – dismissal in default and restoration – Order 9 Rules 3, 4 and 8 of Code of Civil Procedure, 1908 – suit dismissed under Order 9 and Rule 3 – restoration of suit under Rule 4 – Rule 4 does not lay the requirement of notice to the defendant for restoration of the suit – held, defendant is entitled to a notice only when the suit is dismissed in default under Rule 8 in his presence not in case of ‘ex parte evidence’.

ORDER

Desai, J.

1. This is an application by a defendant in revision against an order of the courts below dismissing his application for the setting aside of an 'ex parte' decree.

2. The opposite party filed a suit against the applicant. On 15-4-1950, which was the date for the filing of the written statement by the applicant, the applicant was absent and the court ordered that the suit would proceed 'ex parte' against him' and fixed 3-5-1950 for 'ex parte' evidence. When the suit was called out for hearing on 3-5-1950, neither the opposite party nor the applicant was present and the court dismissed the suit in the absence of the parties.

Later, at the request of the opposite party, the suit was restored but without any notice having been given to the applicant. After restoring the suit, the court again proceeded 'ex parte' against the applicant, gave him no notice of the next date fixed for recording 'ex parte' evidence and on 12-7-1950 passed an 'ex parte' decree against him. The applicant then applied for the setting aside of that decree and that application has been dismissed by the courts below.

3. The first contention of the applicant is that the suit should not have been restored without a notice being given to him. There is no law under which a notice was necessary to be given to him. The suit was dismissed under Order 9, Rule 3, and was restored under Rule 4. That Rule does not lay down that before a suit is restored a notice should be given to the defendant. A defendant is entitled to a notice only when a suit is dismissed in default under Rule 8, in his presence. See 'BRIJ LAL v. BUA RAM', 10 All LJ 399 and 'RAMJI LAL v. KESHEO RAM' AIR 1923 Oudh 55(1) in support of this view. The provision in Rule 14 is of no application at all because that deals with a notice to the plaintiff of an application for the setting aside of an 'ex parte' decree. The trial court committed no illegality or irregularity in restoring the suit without notice to the applicant.

4. The next contention is that after restoring the suit, the trial court should have given to the applicant a notice of the date fixed for recording evidence. He has not been able to cite any provision under which the trial court was bound to give him a notice of the date. The effect of the restoration was same as if there were no dismissal of the suit on 3-5-1950. Only the order of dismissal passed on 3-5-1950 was set aside; all previous proceedings and orders were revived including the order that the suit was to proceed 'ex parte' against the applicant. On restoration the suit was placed in the same position in which it was just before the dismissal, and the trial court was required to proceed 'ex parte' against the applicant. I am supported by 'KARORA SINGH v. BABU RAM' AIR 1952 Pepsu 22.

As the proceedings were 'ex parte', the applicant was not entitled to any notice of the date fixed for the opposite party's evidence. The provision in Rule 7 is directly against his contention. When a suit is proceeding 'ex parte', not only is the defendant not entitled to any notice in future but also it is his duty to appear 'sua motu' in court and apply for the setting aside of the 'ex parte' proceedings if he wishes to be heard in defence of the suit. Unless he satisfies the court that he had good ground for his absence, he has no right to be heard. When he has no right to be heard, it would be inconsistent to say that a notice of the date should be given to him. Consequently the trial court committed no illegality or irregularity in giving no notice to the applicant of the date fixed for recording 'ex parte' evidence.

After the restoration it was for the applicant himself to appear in court and get the 'ex parte' order set aside under Rule 7. If he did not get the 'ex parte' order set aside, he could apply for the setting aside of the 'ex parte' decree, as he did in the instant case. But he could not succeed unless he satisfied the court that there was good ground for his absence on 15-4-1950. This he has failed to do. His application was rightly dismissed.

5. The facts in 'MOOL CHAND v. GANGA SAHAP MANU/UP/0300/1933 and 'RAM CHANDRA RAMAJI v. SAHADEO GOPALA' AIR 1945 Nag 185, are not on all fours with the facts of the present case. There was no order passed by the trial court hearing the suit 'ex parte' as in the present case. There Rule 7 of Order 9 did not come into application as it did in the present case.

6. In the result the application is dismissed.

manu (advocate) 06 September 2009

Equivalent Citation: AIR1988Raj201, 1988(1)WLN681

IN THE HIGH COURT OF RAJASTHAN

Civil Revn. Petn. No. 541 of 1987

Decided On: 08.03.1988

Appellants: Pirag Chand
Vs.
Respondent: Firm Ramlal Channanmal

Hon'ble Judges:
Jasraj Chopra, J.

Counsels:
For Appellant/Petitioner/Plaintiff: M.L. Shreemali, Adv.

Subject: Commercial

Catch Words

Mentioned IN

Acts/Rules/Orders:
Civil Procedure Code (CPC), 1908 - Order 9, Rule 6

Cases Referred:
Rafiq v. Munshilal, AIR 1981 SC 1400; Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993

Disposition:
Revision dismissed

Case Note:
Civil Procedure Code - Order 9, Rule 7--Exparte proceedings--Defendant No. 2 not contesting suit after service of summons--Suit proceeded exparte and dismissed in default--Defendant No. 2 filed application for setting aside exparte proceedings after 5 1/2 years-Held, he is not entitled to (i) notice of transfer of case; and (ii) notice for restoration of suit.

Once he elects not to proceed with the suit he is not entitled to any notice of such a transfer...The defendant has elected not to participate in the proceedings and, therefore, the suit was ordered to proceed in default after 5 1/2 years of the making of such an exparte order for the non appearance of the plaintiff it can safely be restored back to its original number without giving any notice to the absentee defendant against whom the suit is already proceeding exparte.

Revision dismissed

ORDER

Jasraj Chopra, J.

1. This revision arises out of an order passed by the learned Addl. Sessions Judge No. 2, Sri Ganganagar dated 18-8-87 whereby the learned trial court has dismissed the application of the petitioner filed und under Order 9 Rule 7 CPC.

2. The facts necessary to be noticed for the disposal of this appeal briefly stated are: that the plaintiff firm Ramlal Chananmal of. Sri Ganganagar filed a suit for recovery of Rs. 35360A against defendant firm Kailash Flour Mill & Oil Mill and the petitioner Shri Pirag Chand on the ground that defendant 2 Pirag Chand gave out himself, as the owner and partner of this shop and it is the defendant 2 who has entered into some contracts with the plaintiff firm prior to 17-4-78 and on that day, after settling the accounts, he executed a 'Rukka' in favour of the plaintiff for an outstanding amount of Rs. 26000/. It is, therefore, claimed that the plaintiff is entitled to recover this amount along with interest from the defendants.

3. The summons of the suit were served on both the defendants. The suit was filed on 24-3-81 and the summons of the suit were served on the defendants prior to 17-11-81, Shri Bheekam Chand Jain, Advocate put in appearance on behalf of both the defendants including the present petitioner and filed a ,Vakalat Nama on that date i.e, 17-11-81 and sought time to file the written statement. On 17-12-81, time was sought for inspection of the account-books. After inspecting the account books a written statement was filed on behalf of defendant 1 on 8-2-82 in which it was claimed that Shri Pirag Chand has nothing to do with defendant firm. He is neither a partner of this firm nor the owner of the firm, and, therefore, he has been misjoined as a party to the suit. It is alleged that defendant 2 Pirag Chand petitioner was advised by his advocate not to file any written statement because he was neither the owner of the defendant firm nor its partner and so he has nothing to do with the dealings of this firm. Accordingly, no instructions were pleaded on behalf of the defendant 2 and it was ordered that the suit be proceeded ex parte against defendant 2. Later, it appears that the suit was transferred for trial by the learned Distt. Judge to the Court of learned Addl. Sessions Judge No. 1, on 14-7-82 and after about three years, the suit was transferred from the Court of learned A. D. J. No. 1 to the Court of learned A. D. J.No. 2 on 25-9-85. It is alleged that no notice of this transfer was given to the defendant 2. Later, it is alleged that the suit was dismissed on 12-2-87 by the learned ADJ No. 2 but it was restored back to its original number and was fixed for the evidence of the complainant on 27-2-87, It is claimed by the petitioner that as no notice of this date was given to him and as such, he could not present himself before the Court on that day. Some evidence was recorded on 27-2-87 and later, the case fixed on 9-4-87. Prior to 9-4-87 i.e. on 6-4-87, this application was filed in which it was contended that Shri Chanan Mal P. W. 1 has stated certain wrong facts about defendant 2 and so it has become essential for defendant 2 to rebut them and, therefore, it was prayed that the ex parte order be set aside and he be allowed to participate in the proceedings. This application was supported by an affidavit of Shri Pirag Chand. Actually the affidavit that has been filed by Pirag Chand is not an affidavit in the eye of law. Be that as it may, this application was opposed by the plaintiff firm, on whose behalf a reply was filed on 2-5-87 along with an affidavit of Chananmal dated 2-5-87. This affidavit filed by Shri Chanan Mal is also not an affidavit in the eye of law. The learned trial court after hearing both the parties dismissed this application of Shri Pirag Chand petitioner for setting aside the ex parte decree and hence this revision.

4. I have heard Mr. M. L. Shreemali learned counsel for the petitioner at length as regards the admission of this petition. Order 9 Rule 6(i)(a) provides that if the summons of the suit are served on the defendant and he does not appear in the Court then the Court may make an order that the suit be heard ex parte. In this case, the summons of the suit was served on defendant 2 and Shri Bheekamchand Jain, Advocate filed power on his behalf in the Court on 17-11-81. Two adjournments were sought for filing the written statement and ultimately on 18-2-82, written statement was filed on behalf of defendant No. 1 but no instructions were pleaded on behalf of defendant and hence it was ordered that the suit shall proceed ex parte against defendant No. 2 Shri Pirag Chand. This application for setting aside that ex parte order was filed on 18-8-87 i.e. almost after a period of, 51/2 years.

5. Mr. Shrimali has submitted that no instructions were pleaded on behalf of Shri Pirag Chand Petitioner on the ground that defendant 2 is not the partner or owner of the firm defendant 1 and, therefore, he has nothing to do with the dealings of the firm defendant 1 and hence he was advised by his counsel not to contest the suit. When the suit has been ordered to proceed ex parte against the defendant 2, as he did not elect to, file the written statement on the basis of the legal advise tendered to him at that time, it was not at all essential to give him any notice of the transfer of the suit to the Court of ADJ No. 1 and ADJ No. 2. Once the suit proceeds ex parte against a particular defendant because he elects not to contest the suit it hardly matters whether the suit is tried by the Court of D. J. or it is tried by the Court of ADJ No. 1 or for that matter, by the Court of ADJ No. 2. once he elects not to proceed with the suit he is not entitled to any notice of such a transfer. Even if such a suit is dismissed in default and is restored back, the defendant who is ex parte in the suit is neither entitled to any notice for restoration nor to any notice after restoration. Mr. Shreemalidrewmy attention to a decision in Labhu Ram v. Kuber Dan reported in ILR( 1958) 8 Raj 95 in this respect. I have critically gone through this authority. It was a case where on a particular day, the suit was fixed for evidence. Both the parties were absent and, therefore, the suit was dismissed in default. On the application of the plaintiff, the suit was restored back to its original number and then ex parte evidence was recorded without giving any notice to the defendant of the next date of hearing. That was a case in which no ex parte order under Order 9, Rule 6(i)(a) CPC was passed against the absentee defendant and, therefore, this ruling has no application to the present case. Here, the defendant has elected not to participate in the proceedings and, therefore, the suit was ordered to proceed ex parte against him and so if that suit is dismissed in default after 51/2 years of the making of such an ex parte order for the non appearance of the plaintiff it can safely be restored back to its original number without giving any notice to the absentee defendant against whom the suit is already proceeding ex parte. The defendant against whom the suit is proceedings ex parte cannot claim any notice of the restoration or a notice of the Subsequents dates of hearings after the restoration is ordered.

6. Mr. Shreemali referred to an authority of their Lordships of the Supreme Court in Rafiq v. Munshilal reported in AIR 1981 SC 1400 wherein it has been held that as per the ' present adversary legal system, if a client selects his advocate briefs him and pays him, his fee, he can remain supremely confidant that his lawyer will look after his interest and such an innocent party should not be punished for the negligence of his lawyer. This case has no application to the facts of the present, case. Here, no instructions were pleaded by the counsel for the petitioner on a clear understanding arrived at between the party and his counsel that defendant 2 need not defend this suit because he is neither a partner nor an owner of the firm defendant 1. Thus, it is not a case of any negligence on behalf of, the counsel. Rather it was agreed between the client and his counsel that the suit should not be proceeded with on behalf of defendant 2 and, therefore, no instructions were pleaded ' and hence this authority of their Lords hips of the Supreme Court has no application to the facts of the present case.

7. My attention was also drawn to a decision of their Lordships of the Supreme Court in Arjun Singh v. Mohindra Kumar reported in AIR 1964 SC 993 wherein it has been observed that in the essence O. 9 Rule 7 is directed to ensure the orderly conduct of the proceedings by penalising improper dilatoriness calculated merely to prolong the litigation. This authority of their Lordships goes against the petitioner instead of giving any support to his case. The defendant consciously elected not to participate in the proceedings because he is neither a partner nor an owner of firm Kailash Flour & Oil Mill This conscious decision was taken by him in spite of the fact that in the plaint it was specifically pleaded that he is the owner or the partner of that firm and it is he who has transacted business on behalf of the defendant 1 with the plaintiff firm and it is he who has executed the 'Rukka' on behalf of defendant 1 firm in favour of the plaintiff firm. The original 'Rukka' was filed with the plaint and those documents have been inspected by the counsel of defendant2 along with the account books of the defendant 1 firm. It is not known as to what has been stated by Shri Chanan Mal which goes against the facts pleaded by him in the plaint. If he has supported his plaint, he cannot be accused of pleading wrong or new facts. Nothing has been brought to my notice from which it may be concluded that he has travelled beyond his pleadings. If he has supported the contentions raised in the plaint that cannot be made a ground to set aside an ex parte order after the expiry of five and half years.

8. Under these circumstances, the learned lower court was perfectly justified in dismissing this application filed by defendant No. 2, under Order 9, Rule 7 CPC

9. I find no force in this revision petition and, therefore, it is dismissed at the admission stage.

manu (advocate) 06 September 2009

Equivalent Citation: AIR1992Raj57, 1990WLN(UC)491

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

C.R.P. No. 190 of 1989

Decided On: 25.01.1990

Appellants: Shishupal
Vs.
Respondent: Manak Chand

Hon'ble Judges:
M.C. Jain, ACJ and Mohini Kapur, J.

Counsels:
For Appellant/Petitioner/Plaintiff: R.S. Kejriwal, Adv.

For Respondents/Defendant: G.P. Kaushik, Adv.

Subject: Civil

Catch Words

Mentioned IN

Acts/Rules/Orders:
Civil Procedure Code (CPC), 1908 - Order 9, Rules 3 and 4

Cases Referred:
Mool Chand v. Ganga Sahai, AIR 1933 All 522; Ramchandra Ramji Khatik v. Sahadeo Gopal Koshti, AIR 1945 Nagpur 185; Labhuram v. Kuberdan, 1957 Raj LW 598; Sangram Singh v. Election Tribunal, Kotha, AIR 1955 SC 425; Sewaram v. Mishrimal, AIR 1952 Raj 12; Pirag Chand v. Firm Ramlal Channanmal, (1988) 1 Rajasthan LR 659, AIR 1988 Raj 201; Babu v. L. Dawan Singh, AIR 1952 All 749

Case Note:
Civil Procedure Code - Order 9, Rules 4 and 7--Suit dismissed in default of both parties--Suit restored on application of plaintiff--Held, notice of restoration to defendant is necessary for further proceeding in suit.

When the suit has been dismissed in default of both the parties and it has been restored back on the application of the plaintiff, without notice of the application to the defendant, a notice is necessary to the defendant after restoration for proceeding with the hearing of the suit, although, there may be an exparte order passed against the defendant before dismissal of the suit in default of the parties. The question does not make any reference to the situation that there was an exparte order against the defendant. Even if there is no exparte order against the defendant, the answer to the question would be that for proceeding in the suit after restoration, notice to the defendant is necessary.

Reference Answered.

ORDER

1. The learned single Judge by his order dated 13-12-89 has referred the following two questions to be answered by a larger bench: --

1- vk;k mHk; i{kdkjku dh mifLFkfr esa vxj okn vne lk{;] vne iSjoh ,oa vne mifLFkfr ds :i esa [kkfjt fd;k tk;s ml okn dks D;k vuqifLFkfr esa [kkfjt okn ekuk tk ldrk gS \

2- vk;k izfroknh dks lqus fcuk ,oa mldks iqu% uEcj ij ysus ds vkns'k dh lwpuk fn;s fcuk D;k vfxze dk;Zokgh okn esa dh tk ldrh gS \

2. Before considering the above referred questions, it would be appropriate to notice few relevant facts. The non-petitioner Manak Chand instituted a suit for arrears of rent and ejectment against the defendant petitioner Shishupal, On 9th May 1980 in the court of Munsif Beawar. The defendant appeared and filed his written statement on 15-12-80. Thereafter issues were framed. On 2nd January, 1985 the defendant and his counsel were not present so an ex parte order was passed. On 11-9-85, the plaintiff and his counsel were also not present and so the suit was dismissed in default. An application for restoration was filed by the plaintiff and the suit was restored to its original number on 11-10-85 without notice of the restoration application to the defendant. The suit was ultimately decreed on 17-2-86 and ex parte decree was passed. An application for setting aside the ex parte decree was presented by the defendant on 20th May, 1986. That application was rejected on 29th July, 1986 by the Munsif Beawar. The defendant preferred an appeal which was heard by the Additional District Judge Beawar. The appeal was also dismissed by the Additional District Judge on 1st Feb., 1989. Dissatisfied with the order of the learned Additional District Judge, the present revision was preferred by the defendant and during the course of arguments, the learned single Judge framed the aforesaid two questions and referred the questions to the larger bench.

3. We have heard Shri Kejriwal, learned counsel for the petitioner and Shri G. P. Kaushik, the learned counsel for the plaintiff-non-petitioner.

4. The learned counsel for the parties agree that so far as the first question is concerned, it is not necessary to decide as it would be an academic question. According to them, in the present case, after restoration of the suit, for whatever reason, the suit has been decreed ex parte and the matter has arisen on the application for setting aside of the ex parte decree. The question that has been framed relates to the matter as to whether the suit when dismissed on account of default of the parties or on account of non-prosecution or on account of want of evidence, can be considered to have been dismissed in default. So far the present case is concerned, the suit has already been restored and thereafter ex parte decree has been passed. So we agree with the learned counsel for the parties that it would be an academic exercise so we do not think it necessary to decide question No. 1.

5. Question No. 2 is most material and difference of opinion has been noticed by the learned single Judge in the authorities referred to in the referring order. Admittedly, in the present case after restoring the suit, no hearing of the suit was given to the defendant petitioner and the proceedings continued ex parte after restoration of the suit culminating into the ex parte decree so the question is, after restoration of the suit, was it necessary for the court to inform the defendant that the suit has been restored and without such notice, whether the court could proceed against the defendant.

6. Mr. Kejriwal, learned counsel for the petitioner submitted that the suit having been dismissed in default once, it was incumbent for the court to have issued notice of the hearing of the suit after restoration of the suit as the defendant cannot be deprived of his valuable right that he could join and participate in the proceedings despite the fact that ex parte order has already been passed. So without notice of the hearing of the suit after restoration, the defendant's right is seriously prejudiced.

7. In support of his contention, Shri Kejriwal placed reliance on a Single Bench decision of Allahabad High Court in Mool Chand v. Ganga Sahai, AIR 1933 All 522. It has been held in this case that when the suit is dismissed on account of absence of both the plaintiff and defendant and when the application for restoration is granted, it appears to be inequitable that the defendant should not have notice of the date fixed for hearing. It was further held that in such case, the defendant is of right entitled to notice of the hearing of the suit.

8. Reliance was further placed on a single Bench decision of Nagpur High Court in Ramchandra Ramji Khatik v. Sahadeo Gopal Koshti, AIR 1945 Nagpur 185. In that case also, it was held that when the court restores a suit to file under Order 9 Rule 4, G.P.C. without notice to the defendants and fixes another date for hearing of the case, the defendant must be given notice of the suit. Reliance was placed in this case on the aforesaid Allahabad decision. In this case, this fact has also appeared that the defendant had knowledge of the dismissal of the suit in default and thereafter he had no knowledge of restoration of the suit and the suit proceeded without any notice to him. The learned single Judge observed that when the court restores a suit to file and fixes another date for the hearing of the case, it does not stand to reason that the defendants should not be given notice of the hearing of the suit. In fact, the defendants had no reason to know that the restoration application had been made and allowed. They knew that the suit had been dismissed for default. They could not anticipate that an application for restoration would be made and allowed. It was further observed that it is but equitable to hold that the Court should fix the case for hearing parties and give notice of the hearing to the other side.

9. Reliance has also been placed on a single Bench decision of this Court in Labhuram v. Kuberdan 1957 Raj LW 598. In that case after filing of the written statement, issues were framed and the case was posted for evidence and some evidence was led by the plaintiff but the case was adjourned for further evidence of the plaintiff to 17th March, 1953. The plaintiff and his counsel were not present on that day. The defendant was also absent. The suit was dismissed under Order IX Rule 3, C.P.C. and an application for restoration was made on the same day. No notice was issued of the application to the defendant and the suit was restored. Thereafter on the prayer of the defendant-petitioner, the court proceeded to record the evidence on the very day and his evidence was closed. Then on the next date, the suit was decreed against the defendant. When the defendant came to know of the decree, he submitted an application in the original suit stating therein that no notice had ever been issued to him, that an application for restoretion has been filed or he was never informed that the suit had been restored and was to be proceeded with. Modi, J. relied on the aforesaid decisions of the Allahabad and Nagpur High Courts (supra) and proceeded to consider the provisions of Order IX, Rule 3, C.P.C. The words "and shall appoint a day for proceeding with the suit" in that provision came up for consideration and it was observed that these words should be given their due effect. The only proper way by which due effect may be given to them, would be that the defendant must get notice of the date fixed for the hearing of the suit. In that case admittedly, no notice was given and so the learned single Judge observed that the procedure followed by the court was quite wrong and virtually amounted to an abuse of the process of the court. The learned Judge also referred some more case law laying down a general principle as to how the court is to act whereby injustice may not be caused. It was observed that when the inherent powers of the court are being invoked, the court is bound to take into consideration the facts and circumstances of the particular case.

10. Shri Kejriwal, vehemently urged that now it is well settled that even when ex parte proceedings are drawn against the defendant, the defendant has a right to join in the proceedings at any stage he likes. For this submission reliance has been placed on Sangram Singh v. Election Tribunal, Kotha, AIR 1955 SC 425. Their Lordships of the Supreme Court observed as under (at p. 429 of AIR) :--

It was held in that case that the defendant had right to appear through counsel and take part in the proceedings from the stage at which they had then reached. In para 37 their Lordships of the Supreme Court observed that the Court has a discretion which it must exercise. Its hands are not tied by the so-called ex parte order, and if it thinks, they are tied by O. 9, R. 7, then it is not exercising the discretion which the law says it should and, in a given case interference may be called for. Instances of plaintiffs prejudice was considered by their Lordships, if the defendant is allowed to join at any subsequent stage after passing of the ex parte order and the Rajas-than view expressed by a Division Bench of this Court in Sewaram v. Mishrimal, AIR 1952 Raj 12 was considered.

11. As against the aforesaid decisions, Shri Kaushik, the learned counsel for the plaintiff-non-petitioner, placed reliance on Pirag Chand v. Firm Ramlal Channanmal, (1988) 1 Rajasthan LR 659 : (AIR 1988 Raj 201). In that case, there were two defendants. Defendant No. 1 was the partnership firm and the defendant No. 2 was alleged to be a partner of defendant No. 1. Appearance was put in on behalf of both the defendants by one advocate and time was sought to file written statements by him on behalf of both the defendants. Further time was sought for inspection of account books. Thereafter, written statement was filed only on behalf of defendant No. 1 in which it was claimed that the defendant No. 2 has nothing to do with the defendant firm, and he has been wrongly joined as a party to this suit. It also appeared in that case, that the defendant No. 2 was advised by his counsel not to file a written statement, because, he was neither the owner of the defendant firm nor its partner so he has nothing to do with the dealings of the firm. His counsel therefore, pleaded no instructions and an ex parte order was drawn against the defendant No. 1. The suit thereafter was transferred to the court of Additional District Judge No. 1 and after three years it was again transferred to the court of ADJ No. 2 from the court of Addl. District Judge No. 1. No notice of transfer was given to defendant No. 2 and the suit was dismissed but it was restored back to its original number and was fixed for evidence of the plaintiff on 27-2-87. The question arose as to whether notice was necessary to the defendant after the case was transferred. An application for setting aside the ex parte order was made and it was prayed that he may be allowed to participate in the proceedings. The application for setting aside ex parte decree was dismissed. It may be mentioned that the learned Judge considered the facts of that case and in the light of the facts of that case, expressed the opinion that no ground was made out to set aside the ex parte order passed after the expiry of 5 1/2 years and the learned judge proceeded on that basis that the defendant No. 2 deliberately elected not to participate in the proceedings and he through his counsel pleaded no instruction in the suit. In the light of the facts and circumstances of that case, the learned Additional District Judge observed that no case is made out for setting aside the ex parte order and this ground cannot be claimed in the circumstances of the case that notice was necessary to the defendant for restoration or after restoration. In the circumstances of that case, it was held that the defendant against whom a suit is already proceeding ex parte, cannot claim any notice of the restoration or a notice of the subsequent date of hearing after the restoration is allowed.

12. Reliance has also been placed on a single Bench decision of Babu v. L. Dawan Singh AIR 1952 All 749. The learned judge in that case took the view that when a suit is dismissed under Order 9, Rule 3, C.P.C. and is restored under Rule 4, the latter rule does not lay down that before a suit is restored, a notice should be given to the defendant. A defendant is entitled to a notice only when the suit is dismissed in default under Rule 8 in his presence. Mool Chand v. Ganga Sahai (AIR 1933 All 522) (supra) and Ramchandra Ramji Khatik v. Sahadeo Gopala Kosti (AIR 1945 Nagpur 183) (supra) were distinguished on the basis that no ex parte order was passed in these cases. Besides that it may be stated that in the Allahabad decision, this question has hot been examined that after restoration, notice of the hearing of the suit is to be given to the defendant or not. What is laid down is that no notice for restoration is required to be given to the defendant.

13. It may be mentioned that in the cases cited by the learned counsel for the non-petitioner emphasis has been placed on the existence of an ex parte order against the defendant. If there is an ex parte order, till the ex parte order is set aside, proceedings will continue ex parte even after restoration of the suit. This aspect of the case, in our opinion, has not gone into consideration that in case the defendant has come to know about the dismissal of the suit and that he has no notice of restoration of the suit, he would not be in a position to join or participate in further proceedings of the suit. Besides this, we agree with the view taken by Modi J. in Labhuram v. Kuberdan (1957 Raj LW 598) (supra). It is implicit in the provisions of Order IX, Rule 4, C.P.C. that when the suit is restored and a date is fixed for hearing of the suit, then a notice of hearing of the suit should be given to the defendant else it would be a great injustice to the defendant and it would be most inequitable that the suit having been dismissed in default, after its restoration, it may be taken up ex parte. If the suit is dismissed in default after its restoration, the defendant has a right to join at any stage in the proceedings of the suit and that the defendant would be deprived of his right in case notice of the hearing is not given to the defendant after restoration of the suit The view taken in the aforesaid decision of this Court by Modi J. appears to be correct for the reasons stated above.

14. The said view is in conformity with Allahabad (Mool Chand v. Ganga Sahai) (ATR 1933 All 522) and Nagpur view (Ramchandra Khatik v Sahadeo Khosti) (AIR 1945 Nagpur 185) and we have taken the above view having to the law laid down by their Lordships of the Supreme Court in Sangram Singh v. Election Tribunal, Kotah (AIR 1955 SC 425) (supra). We are therefore, of the opinion that when the suit has been dismissed in default of both the parties and it has been restored back on the application of the plaintiff, without notice of the application to the defendant, a notice is necessary to the defendant after restortion for proceeding with the hearing of the suit, although, there may be an ex parte order passed against the defendant before dismissal of the suit in default of the parties. The question does not make any reference to the situation that there was an ex parte order against the defendant. Even if there is no ex parte order against the defendant, the answer to the question would be that for proceeding in the suit after restoration, notice to the defendant is necessary. We accordingly answer question No. 2 in the manner that notice to the defendant is necessary for proceeding with the suit after restoration.

15. The revision petition shall now go back for disposal in accordance with law.

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Effects of exparte

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