The main legal point established is that even a defendant who fails to show good cause for non-appearance should be permitted to participate in the further conduct of the case, including filing a written statement.

Varadachariar, J.

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 prep