A defendant who has been proceeded ex parte can join proceedings from the stage at which he appears, even though the ex parte order had not been set aside.

Ajay Kumar Mittal, J.

1. The challenge in this revision petition is to the order dated 28.1.2002 passed by the Additional Civil Judge, (Senior Division) Bhiwani.

2. The facts leading to the controversy raised in the revision petition deserve to be noticed first:

3. The plaintiff-Shree Sanatan Dharam High School, instituted a suit (suit No. 536 of 1987) for permanent injunction as well as for declaration that the defendants, Bijay Kumar and others were not the duly elected members of the Governing Body of the said school nor had they any right or concern whatsoever to interfere in the working of the school. On 5.2.1988, defendants filed counter claim in the said civil suit. The reply to the counter claim was filed by the plaintiff-respondent on 30.5.1988. The issues in the suit were framed on 28.4.1989. The plaintiff concluded its evidence on 4.1.1996. When the suit was at the stage of evidence of the defendants, the plaintiff moved an application on 17.1.1996 for permission of the court to withdraw the suit. The trial Court recorded statement of the counsel appearing for the plaintiff on the same day. The proceedings were, however, deferred to 23.1.1996 for consideration. On 23.1.1996, no one appeared on behalf of the plaintiff and the suit had to be adjourned to 2.2.1996 for the same purpose. On 2.2.1996 also, neither the plaintiff nor its counsel put in appearance and consequently the prayer for withdrawal of the suit was considered in the absence of the plaintiff. It is apparent from the perusal of the order dated 2.2.1996 (Annexure P-4) that prayer of the plaintiff was opposed by the defendants. However, the prayer of the plaintiff was granted and the suit was dismissed as withdrawn by order dated 2.2.1996 (Annexure P-4), and the defendants were permitted to pursue their counter-claim filed in the suit.

4. The learned Counsel for the petitioners submitted that the trial court vide order dated 2.2.1996, while allowing the counter claim to proceed, had ordered that the plaintiff-respondent was to be proceeded ex parte as none had appeared on its behalf. According to the learned Counsel, this order dated 2.2.1996 was never set aside and, therefore, no evidence could have been led by the plaintiff-respondent on the counter-claim. The learned Counsel thus, vehemently submitted that in that event, the application filed by the defendant-petitioners for striking off the evidence produced by the plaintiff-respondent ought to have been allowed and thus, the trial court has committed an error in rejecting the said prayer.

5. Reliance was placed on the judgments of the Supreme Court in Sangram Singh v. Election Tribunal Kotah and Anr., and Modula India v. Kamakhya Singh Deo 1988(2) R.C.R. (Rent) 530, and at this Court in Phool Kanwar and Ors. v. Baru Ram and Ors. (1990-2)98 P.L.R. 23 by the learned Counsel.

6. Supporting the order of the trial Court, learned Counsel for the respondent on the other hand, vehemently submitted that after the passing of the order dated 2.2.1996, the same was challenged in this Court by way of Civil Revision No. 668 of 1996 in which further proceedings before the trial court were stayed on 19.2.1996. The revision petition was, however, dismissed on 17.7.1996. On an application filed by the plaintiff-respondent to join the proceedings, the trial court vide order dated 22.8.1996 allowed the plaintiff-respondents, to join the proceedings and in pursuance thereof, the plaintiff-respondent led evidence on the counter claim. The counsel further submitted that thereafter even rebuttal evidence was also concluded by the defendant. Still further, an application for deleting the rebuttal evidence was also dismissed by the trial Court and the said order was upheld by this Court in Civil Revision No. 4931 of 2002 when the revision petition was dismissed. According to the learned Counsel, no proceedings had taken place after 2.2.1996 till 22.8.1996 before the trial court, therefore, there is no illegality in th