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1997 DIGILAW 1174 (RAJ)

Dev Bux @ Babu Lal v. Mst. Dakhi

1997-09-22

P.P.NAOLEKAR

body1997
Honble NAOLEKAR, J. – Respondents Nos. 1 & 2 filed a revenue suit in the Court of Sub-Divisional Officer (S.D.O.), Parbatsar. The suit proceeded and on 30.9.1991 the petitioner-defendants counsel pleaded no instructions and, therefore, the Court proceeded against the petitioner-defendant ex parte. Again on 22.3.1993 similar situation arose and the counsel for plaintiffs- respondents No. 1 and 2 also pleaded no instructions and as a result thereof, the Court dismissed the suit in default. On 9.6.1993 an application was moved for restoration of the suit u/O. 9 R. 8 CPC alongwith an application u/s. 5 Limitation Act. On 27.7.1993 the suit was restored to the file treating it to be within limitation. Later on, 17.8.1993 the defendant-petitoner filed an application before the S.D.O., Prabatsar that without hearing him, the suit could not be restored. That application was rejected by the S.D.O. and later on, that decision was maintained upto the Board of Revenue. The Board of Revenue was of the view that since the petitioner was proceeded ex parte there was no necessity of issuing a notice before the application for restoration was heard and the suit was restored. (2). I do not find any infirmity in the order passed. However, in view of the decision of the Apex Court rendered in Sangram Singh vs. Election Tribunal, Kotah (1), wherein it has been held that once a party is being proceeded ex parte, it cannot be said that he cannot be allowed to appear at all if he does not show good cause. If the party is proceeded ex parte, the only position is that he cannot be relegated to the position he would have occupied if he had not proceeded ex parte. If a party does not appear on the day to which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceedings simply because he did not appear on the date when the ex parte proceedings were taken up against him. The peti-tioner-defendant could appear in the proceedings and can take part and participate. (3). With the aforesaid observations, the petition stands disposed of.