For filing an application under Order 9, Rule 7, C.P.C. no limitation is prescribed and that it is open to the Court to condone her absence and set aside the ex parte order and permit her to take part in the proceedings at any stage of the proceedings. In support of the contention, the learned Counsel for the respondent drew my attention to the provision of Order 9, Rule 7, C.P.C. which reads:
Held that the ex parte order only covered the period during which the party was absent and did not preclude him from proceeding with the suit after that stage Order 9, Rule 7, Civil Procedure Code does not prevent this but applies to the case where the party being declared ex parte wishes to be relegated back to the position which he would have been in, if he had appeared at the previous hearing and had opportunities of cross-examination etc. This was followed in a subsequent decision in Pattanna v. Neeli Chetty Ramish Chetty and Anr. A.I.R. 1927 Mad. 1197. In Arjun Singh v. Mohindra Kumar . Their Lordships of the Supreme Court while considering the principle of res judicata with respect to the order passed under Order 9, Rules 7 and 13, held:
Order 9, Rule 7 does not put an end to the litigation nor does it involve the determination of any issues in controversy in the suit. A decision or direction in an interlocutory proceeding of the type provided for by Order 9, Rule 7 is not of the kind which can operate as res judicata so as to bar the hearing on the merits of an application under Order 9, Rule 13"In Kamal Singh v. Sripal A.I.R. 1986 P. and H. 19 in para 4 it was held:
The defendant against whom an order declaring him to be proceeded ex parte was passed on the date of the first hearing is entitled to come in and take part in the trial at a later stage. If he agrees to be bound by what has taken place during his absence he need not make an application under Order 9, Rule 7, C.P.C. for getting the order set aside. He can continue from the stage at which he appears. However, if he desires to cross-examine the witnesses examined before he entered appearance he can apply under Rule 7, of Order 9 and get an order, in which case he can claim an opportunity to cross examine the witness examined before he entered appearance. In such a case, he seeks to be relegated back to the position he would have been if he were present on the day on which evidence was taken in his absence. Had he been so present, he would have got an opportunity to cross-examine the plaintiff's witnesses. This is the right which he can exercise after getting an order under Order 9, Rule 7, C.P.C.
In Sangram Singh v. Election Tribunal Kotah after extracting the relevant provision Order 9, Rule 7, Order 8, Rule 10, Their Lordships observed:
We have seen that if the defendant does not appear at the first hearing, the Court can proceed ex parte, which means that it can proceed without a written statement; and Order 9, Rule 7 makes it clear that unless good cause is shown the defendant cannot put in a written statement unless he is allowed to do so, and if the case is one in which the Court considers a written statement should have been put in, the consequences entailed by Order 8, Rule 10 must be suffered.
Here you cant file perjury, doing so only will be procedural and be waste of time.
