IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY SECOND DAY OF JULY TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.504 of 2010 Between: C. Ratna .. Revision Petitioner AND Shyamala & 4 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.504 of 2010 ORDER: Heard Sri P. Gangarami Reddy, learned counsel for the revision petitioner and Sri M.V. Subba Reddy, learned counsel representing Sri C.B. Ram Mohan Reddy, learned counsel for the first respondent/plaintiff. 2. The revision is directed against the order, dated 25.01.2010, in I.A.No.2848 of 2009 in O.S.No.38 of 2004, on the file of the Senior Civil Judge’s Court, Gadwal, dismissing the application of the revision petitioner/second defendant to set aside the ex parte order, dated 03.04.2008, with costs. 3. The revision petitioner/second defendant filed the interlocutory application claiming that after filing the written statement in the suit, the plaintiff and she were advised by elders and relatives to withdraw the suit, during the marriage of the second defendant’s daughter, on which the plaintiff assured that the suit will be withdrawn. The second defendant claimed that she believed the same and she had been to Tokyo after the marriage along with her daughter and after return to India after a long time, she is at present at Hyderabad. It was only recently that she came to know that the suit was not withdrawn and hence, she filed the petition. 4. While the other defendants did not contest the request, the plaintiff denied any intervention of the elders or any assurance to withdraw the suit. The plaintiff claimed that after P.Ws.1 to 10 and D.Ws.1 to 4 were examined, the matter underwent more than 30 adjournments. Thereafter, the petition was filed to protract the proceedings. The second defendant was stated to have performed the marriage engagement ceremony of her son in March, 2008, and then the marriage in August, 2008, at Secunderabad and hence, the petition, without bona fides, may be dismissed. 5. The trial Court passed the impugned order after hearing both parties noting that in the suit of the year 2004, the second defendant specifically pleaded that she sold away the suit property to the third defendant under a registered Sale Deed and obviously, she lost interest in the property. The trial was noted to have commenced in January, 2007, and when the second defendant did not turn up to cross-examine the witnesses for the plaintiff, she was set ex parte on 03.04.2008. The trial Court felt that technically speaking, the right of the second defendant to cross-examine the witnesses was forfeited after which the matter underwent several adjournments with P.Ws.1 to 10 and D.Ws.1 to 3 being examined in the meanwhile. The trial Court also noted that by an order, dated 20.10.2009, the issues were recast and the parties were given liberty to adduce further evidence, if any, after which D.W.4 was also examined by the other defendants. It was when the matter was coming for cross-examination of D.W.1 that this application was filed on 17.12.2009 and the trial Court considered any reasonable cause to be absent, even prima facie in the absence of a scrap of paper to show her absence from India. The trial Court also accepted the probability from the wedding card that the second defendant performed her son’s marriage in August, 2008, in India. The period during which the second defendant was in Tokyo was noted to have not been specified and the non-filing of her passport was also noted. Hence, the petition was dismissed with costs. 6. The second defendant filed the revision mainly contending that the trial Court, after permitting the parties to adduce further evidence by an order, dated 20.10.2009, after recasting the issues, should not have rejected the request of the second defendant who did not pursue her defence earlier only under the impression that the advice of the elders and relatives to withdraw the suit was complied with by the plaintiff. 7. The point for consideration is whether the petitioner is entitled to seek setting aside the ex parte order, dated 03.04.2008, and if she is not entitled to do so, what should be the future course of the proceedings in the suit. 8. The procedure that should govern when only the plaintiff appears and the defendant does not appear when the suit is called on for hearing has been laid down in Order IX Rule 6 of the Code of Civil Procedure, 1908 (for short, ‘C.P.C’) and if the Court adjourned the hearing for hearing ex parte, the defendant can approach the Court under Order IX Rule 7 C.P.C to be heard in answer to the suit as if he had appeared on the day fixed for appearance, if he appears before the Court and assigns good cause for the previous non- appearance. The content and purport of the relevant provisions have been considered in AZMATYH BAIG VS. T. NARESH KUMAR SINGH[1] referred to by Sri P. Gangarami Reddy, learned counsel for the revision petitioner and the learned Judge referred to the necessity for an application under Order IX Rule 7 C.P.C only if the defendant wishes the proceedings to be reflected back and reopen the proceedings from the date wherefrom they became ex parte so as to convert the ex parte hearings into bi-parte. The learned Judge noted that unless good cause is shown for the earlier non-appearance, the proceedings must continue from the stage at which the later appearance is entered and the party so appearing cannot seek to be relegated to the position he would have occupied if he had appeared at the earlier hearing. It was also noted that the Code of Civil Procedure, 1908, is reasoned to facilitate justice and further its ends and should not be treated as an enactment providing for punishments and penalties. 9. The controversy herein has to be considered in the light of the above principles and it is well settled by number of decisions that an ex parte order passed under Order IX Rule 6 C.P.C does not debar a defendant who suffered such an order from participating in the further proceedings in a suit from the stage at which such defendant later appears before the Court and it is only when such a defendant desires to be relegated back to the position prior to or by the time of the ex parte order that an application under Order IX Rule 7 C.P.C is required and otherwise not. ARJUN SINGH VS. MOHINDRA KUMAR[2] cited in the above cited decision clearly laid down that on an adjourned hearing in spite of the court having proceeded ex parte earlier, the defendant is entitled to appear and participate in the subsequent proceedings as of right. 10. The factual matrix in the present case is not seriously in controversy about the second defendant having stated to have alienated the suit property much prior to the suit and the second defendant not availing the opportunities before 03.04.2008 to cross-examine the witnesses of the plaintiff or produce her own evidence. It is also not in dispute seriously that the second defendant had performed the marriage engagement ceremony and the marriage of her son in March and August, 2008, respectively at Secunderabad. The trial Court, therefore, cannot be considered to have gone wrong in noting the probable absence of interest for the second defendant in participating in the suit proceedings earlier and the absence of any convincing reasonable explanation for her earlier absence and non-availment of the opportunities for cross- examination of the witnesses examined earlier. In the absence of any convincing explanation for her absence on 03.04.2008 and subsequently till 17.12.2009 when this petition was filed, the trial Court cannot be considered to have exercised its judicial discretion wrongly in refusing to set aside the ex parte order. 11. However, when the application was filed to set aside the ex parte order on 17.12.2009 and when the second defendant appeared before the Court on 17.12.2009, the suit being pending by that date, the second defendant has the right to participate in the further proceedings in the suit that have taken place since then even in spite of the untenability of her request to set aside the ex parte order, dated 03.04.2008. The same will have no effect on whatever proceedings have taken place prior to or after 03.04.2008 and upto 17.12.2009 and whatever orders the trial Court has passed concerning the proceedings that have so taken place. While the revision petition should fail, such a clarification needs to be made and if the second defendant was not allowed to participate in the proceedings from 17.12.2009, she has a right to seek such participation since that date. 12. Therefore, the Civil Revision Petition is dismissed without costs, but the second defendant is entitled to participate in the proceedings of the suit, if she so desires and is so advised, since 17.12.2009, the date of filing of I.A.No.2848 of 2009, before the trial Court. _______________________ G. BHAVANI PRASAD, J Date: 22nd July, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.504 of 2010 Date: 22nd July, 2011 KL [1] 2006 (3) ALT 266 [2] AIR 1964 SC 993