The main legal point established in the judgment is that a defendant, being one of the co-mortgagors, had the right to seek transposition as the plaintiff in a suit for redemption, and the court could invoke inherent jurisdiction to permit transposition in the absence of specific provisions in the Code of Civil Procedure.

1. One of the defendants in a suit for redemption of a usufructuary mortgage wants to get transposed as the plaintiff. But the application filed by him for that purpose was disallowed by the trial court. Hence he has filed this Civil Revision Petition.

2. The usufructuary mortgage was created by the father of the plaintiff early in 1100 M.E. On the death of the original mortgagor the right of redemption had devolved on his children. The plaintiff and this petitioner are brothers, being the children of the original mortgagor. The suit was filed by the sole plaintiff in which the other co-mortgagors were also made defendants. The petitioner is the 11th defendant. As he did not enter appearance in the suit earlier he was set ex-parte.. Though be made an

attempt to have the ex-parte order against him set aside, he did not succeed. The main relief claimed in the suit is for redemption of the mortgage on behalf of all the mortgagors including the petitioner.

3. The suit was once dismissed for default. But the plaintiff then filed an application for restoration of the suit. Though the application for restoration of the suit was dismissed by the trial court, it was allowed by the appellate Court. In the present application to transpose him as the plaintiff the petitioner has stated that the plaintiff is unwilling to prosecute the suit. He has further averred in the said application (hat he has confidential information that the present plaintiff would have the suit again dismissed for default or due to non-prosecution. He apprehends that the plaintiff may even withdraw the suit without the consent of the other co-mortgagors. It was in the aforesaid background that he filed the application to get transposed as the plaintiff.

4. The application for transposition was not opposed by the plaintiff. However, the contesting mortgagees resist the application stoutly. Their main contention is two fold: The defendant in a suit for redemption of mortgage has no right to get transposed as the plaintiff and that once a defendant has failed to file written statement, he is debarred from participating in the suit at a later stage.

5. The trial court accepted those contentions. It held that the petitioner, having been treated as ex parte, cannot maintain an application for transposition.

6. The petitioner is one of the co-mortgagors. If plaintiff has a right to redeem the mortgage, the petitioner also has the same right. There is no dispute on those aspects. But can he be debarred from seeking to get himself transposed as a plaintiff merely on the ground that he was set ex parte in the suit? Answer to this question depends upon the implications of non-appearance of one of the defendants in a suit. Summons is issued to a defendant "to appear and answer the claim" on a day to be specified therein. 0.5 R.1(2) of the Code of Civil Procedure (for short'the Code') makes it discretionary on the part of the defendant to appear in court when a summons is served on him. 0.9 R.11 provides that the suit shall proceed if one or more of the defendants do not appear. Every summons shall be accompanied by a copy of the plaint (Vide 0.5 R.1 (3)). If a defendant on reading the copy of the plaint finds that there is nothing to contest, why should he be compelled to file a written statement. 0.8 R.1 only envisages a written statement of his "defence". If a defendant does not intend to dispute the plaint averments, be is not obliged to file a written statement because he has nothing to defend himself against the plaint contentions. But by adopting silence he does not cease to be a party in the suit. The decree passed in the suit will be binding on him also. The omission to file a written statement at the worst would amount to his admitting the averments in the plaint. In this case it is important to note that the plaintiff has averred in the plaint that the redemption sought for is not only for himself but on behalf of the other co-mortgagors as well. In such circum