JUDGMENT

Ashworth, A J C - This second appeal arises out of a suit brought by the respondents-plaintiffs for possession of certain land. On the day fixed for the appearance of the parties the defendant-appellant as well as the plaintiffs, appeared in Court, but the defendant-appellant after filing his written statement, withdrew from the case because he said that he could not afford counsel and was unable to defend the case himself. The Court, therefore, directed that the suit should proceed ex parte. The 6th August was fixed for the production of the plaintiff's evidence. On that date the defendant appeared and asked that the order directing that proceedings should proceed ex parte should be set aside and that he might be allowed to produce his evidence. The Munsif rejected his application, and, after considering the plaintiff's evidence, passed a decree against the defendants-appellants ex parte. From this decree the defendant-appellant appealed to the Subordinate Judge. The Subordinate Judge held that the record failed to disclose any illegality, and on the strength of the ruling in Jadu Nath Basak v. Ram Narayan (1909) 13 O.C. 25 held that in appeal he could not go outside the record and consider the appeal as if it were an Application under Order 9, Rule 13 for setting aside an ex parte decree. In this the lower Appellate Court was undoubtedly right. The sole question that arises in this case is whether

(1) the Court of first hearing was justified in the circumstances, when the defendant withdrew from the proceedings, in directing that proceedings should be ex parte against him;

(2) whether the Court of first hearing was justified in rejecting the application of the appellant, dated 6th August, for the setting aside of the order of the 22nd May, that proceedings should be ex parte; and in refusing to allow the defendant to produce his evidence and resist the case.

2. As to question No. 1, it is urged by the appellant's counsel that there is no provision of the C.P.C. exactly applicable to the case. It is clear, however, that a party who appears and then withdraws can be in no better position than a party who makes no appearance at all. The Court of first hearing was clearly entitled to adopt and direct that the case should proceed ex parte. As to the second point, under Order 9, Rule 7, it was necessary for the defendant to show good cause for his previous withdrawal from the suit, withdrawal being equivalent to "non-appearance" as used in that rule. In the application the reason given for the withdrawal was that he had not got counsel, and that he could not conduct the defence himself. These reasons were obviously insufficient to justify his withdrawal. It is true that the Court of first hearing might have allowed the appellant to be heard on the 6th August as a matter merely of clemency, but the Court was undoubtedly right in refusing to allow him to be heard, as it is clear that it would have meant a further adjournment of the case in order to enable the defendant to produce his evidence. The application of the 6th August does not state that the appellant could proceed with the case straightaway. The application is silent on the point. The appeal is, therefore, dismissed under Order 41, Rule 11.