1. These petitions have been filed by the first defendant in the Lower Court, asking this Court to revise two orders passed by the lower Court in the following circumstances.
2. The first defendant did not appear on the first hearing date and he was declared ex parte on 10th January, 1936. On 30th July, 1936, he applied to have that order set aside alleging that summons had not been served on him. The lower Court was of opinion that this allegation was not true and accordingly dismissed that petition on 15th August, 1936. C.R.P. No. 1317 has been filed against this order.
3. On 18th August. 1936, the first defendant applied for permission to file a written statement and to take further part in the conduct of the case. The District Munsif was of opinion that in view of his former order dismissing his application to set aside the order declaring him ex parte all that the first defendant could be permitted to do was to cross-examine the witnesses on the other side without letting in any evidence on his side. He was also of opinion that the first defendant was not entitled to file a written statement at that stage. With these observations, he dismissed the petition of the 18th August, 1936 and it is against this dismissal that C.R.P. No. 1561 of 1936 has been filed.
4. So far as C.R.P. No. 1317 is concerned, I do not feel justified in interfering with the order of the lower Court. The finding that the first defendant had been duly served is a finding of fact which I see no reason to set aside on any grounds open in revision. I may however add that though it is the practice in the mofussil to pass an order declaring a defendant ex parte, the Code does not in terms provide for an application to set aside that order. All that Rule 7 of Order 9 provides is that where the ex parte hearing of a suit has been adjourned the defendant may at any time before the disposal of the suit appear and if he assigns good cause for his previous non-appearance, he may be heard in answer to the suit as if he had appeared on the day fixed for his appearance. It is only when a decree has been passed that an application in terms to set aside that decree is contemplated in Rule 13. With this observation, I dismiss C.R.P. No. 1317 with costs.
5. In C.R.P. No. 1561, however, I am unable to approve of the order passed by the lower Court. I am not able to gather the exact ground on which the District Munsif thought that the first defendant can only cross-examine witnesses on the other side but not lead any evidence on his side. There is no doubt a specific provision of this kind in the Original Side Rule - see Order 6, Rule 2 of the Original Side Rules - but in the absence of any express statutory provision of this kind, courts in the mofussil seem to me to have no warrant to impose such a restriction. Among the authorities referred to by the District Munsif, it is sufficient to refer to the judgment of Wallace, J., in Venkatasubbiah v. Lakshminarasimham : AIR1925Mad1274 . The principle enunciated by the learned Judge is that even a defendant who fails to show good cause for his previous non-appearance is not debarred from participating in the further conduct of the case and that the Original Order only covers the period during which the party was originally absent. He proceeds to point out that where good cause for non-appearance is shown, the party would be relegated back to the position which he would have been put in if he had appeared at the previous hearing, that is, that proceedings which have taken place in his absence could be re-opened so as even to give him the opportunity of cross-examining witnesses that had been examined in his absence. This principle has generally been adopted in most of the reported cases - vide Pattabirama Aiyangar v. Neli Chetti I.L.R.(1927) 51 Mad. 597, Arumugam Pillai v. Kandasami Pillai : AIR1928Mad211 and Harba v. Mt. Chandrabhaga A.I.R. 1931 Nag. 122. The extreme view taken in Oudh is opposed to the preponderance of authority. On the above principle, I do not see any justification for drawing a distinction between the liberty to cross-examine the plaintiff's witnesses and the liberty to adduce evidence on his own side so far as future proceedings are concerned.
6. I have however felt some hesitation as to whether or not the first defendant should be permitted to file a written statement. But I have come to the conclusion that there is no reason to deny him this opportunity. According to the test suggested by Wallace, J., it will not, in any sense, be re-opening what has happened in the past, if the first defendant should be permitted to file a written statement. I am informed that other defendants have filed written statements and certain issues have been framed thereon. No evidence has yet been recorded. I also gather that the first defendant is not content with the issues raised already and that his proposed written statement might raise other issues. Assuming these facts to be true it appears to me that what the first defendant asks for is nothing in contravention of what the authorities recognise him to be entitled to. The mere fact that on the new statement, additional issues may have to be framed does not amount to re-opening anything that has happened already. It has been stated that even while asking for permission to file the additional written statement, the petitioner stated that he had his witnesses ready and that he did not require any adjournment on the ground of having to summon any witness. It may be that on the filing of the petitioner's written statement, the plaintiff might require time to get ready to meet the plea there raised; but that is an indulgence required by the plaintiff and not an indulgence required by the petitioner. I quite realise that the object of Rules 6 and 7 of Order 9 will be frustrated if defendants could be allowed to absent themselves with impunity at the earlier stages of a litigation. But where by reason of causes for which none of the parties is responsible, the case has not made much progress, there is no reason why these rules should be applied as penal provisions depriving parties of the opportunity of putting forward their defence. The rule Laid down in Venkatasubbiah v. Lakshminarasimham : AIR1925Mad1274 seems to me, if I may say so, to adopt the golden mean and according to the test there Laid down, I think this petition ought to be allowed.
7. The lower Court is directed to receive the written statement proposed to be filed by the first defendant and frame the necessary issues after giving sufficient opportunity to the other parties to file any additional pleadings that they may consider necessary in view of the first defendant's written statement. In the circumstances there will be no order as to costs in C.R.P. No. 1561.