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1973 Supreme(Goa) 13
Goa High Court
TITO MENEZES, J. C.
Smt. Manoramabai Xetie - Appellant
Versus
Smt. Lidia Belinda Simoes - Respondents
Civil Revn. Appln. No. 116 of 1972
Decided On : 30 June 1973
William Gomes, for Applicant, A. Tovar Dias, for Respondent.
Defendant's right to participate in subsequent proceedings after an ex parte order, and the requirement to show good cause for their absence on the day the order was passed.
Headnote:
Ex Parte Proceedings - Defendant's Right to Participate - The court held that even if an order is passed for proceeding with the case ex parte, the defendant is entitled to take part in the subsequent proceedings, as long as good cause is shown for their absence on the day the ex parte order was passed. The defendant should not be unnecessarily barred from raising a legitimate defense, and the order to proceed ex parte does not disentitle the defendant from taking each and every step in subsequent proceedings.
Fact of the Case:
The defendant's application to participate in the further proceedings after an ex parte order was passed was dismissed by the Senior Civil Judge. The defendant sought to be allowed to take part in the proceedings after an order was passed adjourning the hearing of the suit for proceedings ex parte, as neither the defendant nor her advocate was present.
Finding of the Court:
The court allowed the defendant's revision application, setting aside the order of the Senior Civil Judge and ruling in favor of the applicant. The respondent was ordered to pay the costs of the application.
Issues: The main issue was the defendant's right to participate in the subsequent proceedings after an ex parte order was passed, and whether good cause was shown for their absence on the day the order was passed.
Ratio Decidendi: The court emphasized that the defendant is entitled to take part in the subsequent proceedings even after an ex parte order, as long as good cause is shown for their absence on the day the order was passed. The defendant should not be unnecessarily barred from raising a legitimate defense.
Final Decision: The revision application was allowed, and the order of the Senior Civil Judge was set aside. The respondent was ordered to pay the costs of the application.
ORDER :- By his order dated 5th October, 1972. the Senior Civil Judge, Quepen, dismissed the application of the defendant/Applicant praying that he be allowed to participate in the further proceedings which were to take place in the suit after an order was passed by the lower Court on 26-7-1972 adjourning the hearing of the suit for proceedings ex parte, as neither the defendant nor her advocate was present.
2. It is well settled law that though an order is passed for proceeding with the case ex parte the defendant is entitled to take part in the subsequent proceedings though the defendant is not entitled to take any steps which the defendant would be entitled to take prior to the date on which the order was passed. In other words, the order to proceed ex parte does not disentitle the defendant from taking each and every step which he was entitled to take in subsequent
proceedings though it does not relegate him to the position in which he was prior to the order, vis-a-vis the steps that
he would be entitled to take prior to the order. Even such relegation to the previous position is possible if good cause
is shown for his not being present on the day on which the order is passed by the Court for proceeding ex parte. No
cause need be shown if all that the defendant wants is to take part in the subsequent proceedings. It is equally a well-settled principle that the defence should not be unnecessarily barred or that the defendant should be prevented from raising his legitimate defence by way of a penalty for his not having appeared on a particular day.
3. If the suit had been disposed ex parte on the day on which the defendant remained absent, there was nothing that the defendant could do because there were no steps left to be taken. In the present case however the suit was adjourned for proceeding ex parte and the interpretation in regard to the provisions contained in Order IX is clearly given by the Supreme Court in Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425. The position is the same, either the order is passed under O. IX. Civil P. C. or under O. XVII, Civil P. C.
4. The applicant succeeds.
The revision application is allowed. The order of Senior Civil Judge, Quepem. dated 5-10-1972 is set aside. The respondent shall pay the costs of this application.
Revision allowed.
