A defendant who has been proceeded against ex parte is entitled to participate in the proceedings from the stage after filing of the evidence even if the application filed by the defendant under Order 9 Rule 7, Civil Procedure Code is not entertained.

( 1 ) THIS order shall dispose of the application filed by the defendants No. 1 and 6 under Order 9 Rule 7 for setting aside the ex parte order dated 9. 7. 1991.

( 2 ) THE plaintiff instituted the suit against the defendants seeking for partition of properties and possession of separate share of the plaintiff and rendition of accounts. The plaintiff and the defendants No. 1 to 4 are brothers and are sons of late Dr. Nihal Chand Jain who died on 30. 12. 1970. The defendant No. 5 was a minor at the time of the institution of the suit and, therefore, he was represented by his father, the natural guardian. The defendants appeared in the suit and filed written statements, contesting the statements made in the plaint. A joint written statement on behalf of defendants No. 5 and 6 was filed. Defendant No. 1 filed his own written statement. On the pleadings of the parties,issueswerealso framed. The dates of trial in the case were fixed from 1st May, 1991 to 3rd May, 1991 and 6th and 7th May, 1991. On 1st of May, 1991, at the request of the Counsel for the plaintiff, the suit was adjourned to2. 5. 1991 for recording of evidence. On 2. 5. 1991, it was reported by the Counsel for the plaintiff that the constituted attorney of the plaintiff had since expired and that the Counsel was unable to obtain any instructions. Accordingly, the Court directed the suit to be listed on 13. 5. 1991 and the dates of trial fixed were cancelled and it was ordered by the Court that fresh dates, if required, would be fixed.

( 3 ) ON 13. 5. 1991, none appeared on behalf of the parties, and therefore, the Court directed the suit to be renotified on 9. 7. 1991. On 9. 7. 1991, the Counsel for the plaintiff was present in Court whereas none appeared on behalf of the defendants. This Court recorded that no one appeared on behalf of the defendants after 7. 12. 1989 although the case was listed for hearing on several occasions and in that view of the matter, the Court directed that the defendants shall be proceeded ex parte. The request ofhe Counsel for the plaintiff for leave to lead evidence on affidavits was accepted and the affidavits were directed to be filed within six weeks. On 16. 12. 1991, it appears that the Counsel for the defendants appeared in the Court, but since the Court was not sitting on that day, the suit was adjourned to 10. 3. 1992. It appears further from the records that inspite of the order passed by the Court, no affidavit by way of evidence came to be filed by the plaintiff.

( 4 ) THE defendants No. 11 and 6 filed the present application under Order 9 Rule 7 on or about 10. 8. 1994 seeking for setting aside the ex parte order passed on 9. 7. 1991. It appears that subsequent to the filing of the aforesaid application by the defendants No. 1 and 6, the plaintiff filed his affidavit by way of evidence.

( 5 ) I have heard the learned Counsel appearing for the plaintiff as also for the defendants No. 1 and 6. The Counsel appearing for the defendants No. 1 and 6 submitted before me that the suit was not fixed for hearing on 9. 7. 1991 and accordingly no order could have been passed by this Court for proceeding the case ex parte as against the defendants No. 1 and 6 on the ground of their nonappearance. Their further submission is that there was good cause for the nonappearance of the defendants No. 1 and 6 on 9. 7. 1991, and therefore, the ex parte order is required to be set aside.

( 6 ) THE learned Counsel appearing for the plaintiff, however, states that no good cause has been shown by the defendants No. 1 and 6 in their application filed under Order 9 Rule 7 of the Code of Civil Procedure and that no explanation worth the name has been set out in the said application for their absence on the relevant date, and as such, the application is required to be dismissed. Rule 6 of Order 9 of the Civil Procedure Code provides that when a suit is called on for hearing, if the plaintiff appears and the defendant does not appear and if it is