JUDGMENT
A.K. Singh, J.
1. As per order-sheet dated 7.4.1997, all the respondents have been duly served.
2. Heard the learned Counsel for the appellants and the learned Counsel for the respondent No. 2.
3. This appeal is directed against the order dated 25.1.1996 passed by the learned Additional District Judge No. 2, Jodhpur in civil misc. case No. 56/93 Natharam v. Smt. Sukhi and Ors., under Order 39 Rules 1 & 2 read with Section 151 C.P.C.
4. By the impugned order, the learned Additional District Judge restrained the defendants (appellants and respondents Nos. 2 and 3) from raising any constructions and alienating the disputed property which consists of house as well as agricultural land, till the disposal of the suit.
5. Shri R.R. Nagori, counsel for the appellant, has submitted that on 25.1.1996, the date on which the impugned order was passed, he was representing Smt. Sukhi and Smt. Kamla and he was not representing Durgaram defendant No. 3 who is respondent No. 2 in this appeal.. It is further submitted by him that on 25.1.1996, the application under Order 39 Rules 1 & 2 read with Section 151 C.P.C. as well as the suit was being heard ex-parte against the defendant No. 3 Durgaram as an order under Rule 6 of Order 9 C.P.C. was passed against him.
6. The learned Counsel for the respondent No. 2 has submitted that when the respondent No. 2 came to know that the suit was proceeding ex-parte against him, he moved an application under Order 9 Rule 7 C.P.C. before the learned trial court and prayed that the order passed under Rule 6 of Order 9 C.P.C. be set aside. It is further submitted by him that on his application, the learned trial court has, by order dated 6.5.1998, set aside the order dated 20.11.1993. A certified copy of the order 6.5.1998 has been filed by the respondent No. 2.
7. A perusal of the order dated 6.5.1998 shows that on 11.3.1997, defendant No. 3 Durgaram filed an application before the trial court praying that the order dated 20.11.1993 be set aside. The grounds on which the prayer was made was that he came to know about the pendency of the suit when the notice dated 26.3.1997 pertaining to civil misc. appeal No. 277/96 was served upon him. The learned Additional District Judge No. 2, Jodhpur, by the order dated 6.5.1998, set aside the order dated 20.11.1993 whereby the suit was directed to proceed ex-parte against the defendant No. 3 Durgaram. As a necessary consequence of the order dated 6.5.1998, the defendant No. 3 Durgaram is entitled to take part in the proceedings before the lower court. He is entitled to file the written statement and raise such defences as may be available to him. The question is whether the impugned order dated 25.1.1996 against which this appeal has been filed, should be set aside on the ground that the application of Durgaram defendant No. 3 (respondent No. 2) under Order 9 Rule 7 C.P.C. has been allowed by the trial court and the order passed under Rule 6 of Order 9 C.P.C. directing that the suit be heard ex parte has been set aside. Rule 7 of Order 9 C.P.C. reads
Procedure where defendant appears on day of adjourned hearing and assigns good cause for previsous non-appearance – when the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.
8. A bare reading of Order 9 Rule 7 C.P.C. shows that if the defendants assigns good cause for his previous non-appearance, and the Court recalls the order passed under Order 9 Rule 6 C.P.C, the defendant becomes entitled to take part in the proceedings from the date which had been fixed for his appearance on which due to non-appearance the direction that the suit would be heard ex parte was given by the Court. In view of this position of law, any order, which was passed in the absence of the defendant, must be regarded as an order passed otherwise than in accordance with law and that order deserves to be set aside because if the defendant, on account of the order passed under Rule 7 of Order 9 C.P.C. becomes entitled to take part in the proceedings in the same manner as if he had appeared on the date fixed for his appearance, the defendant must be heard afresh regarding the matter in respect of which order passed in his absence.
9. Where there are more defendants than one and the order under Rule 7 of Order 9 is passed in favour of only one of several defendants, whether the order passed against other defendants should also be set aside is not indicated by Rule 7 of Order 9 C.P.C. but there is an indication in the First proviso to Rule 13 of Order 9 C.P.C. in this regard. The First proviso to Rule 13 of Order 9 reads –
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendant also.
10. The proviso clearly indicates that if the order passed in the absence of a defendant is of such a nature that it cannot be set aside against such defendant only then the order may be set aside as against all or any of the other defendants also. The principal contained in the First proviso to Rule 13 of Order 9 C.P.C., appears to apply to the cases in which an order is passed by the Court under Rule 7 of Order 9 C.P.C.
11. For the reasons mentioned above, in exercise of powers conferred by Rule 23-A read with Rule 33 of Order 41 C.P.C., the impugned order dated 25.1.1996 is hereby quashed and set aside and the case is remanded to the learned Additional District Judge No. 2, Jodhpur with a direction that after giving opportunity to the defendant No. 3 Durgaram to file a reply of the application filed by the plaintiff Natharam and after giving an opportunity to the parties for hearing the application should be disposed of in accordance with law. In the facts and circumstances of the case, it appears to be just and proper to give a direction that as far as possible, the learned Additional District Judge No. 2, Jodhpur shall dispose of the application filed by the plaintiff Natharam under Order 39 Rules 1 & 2 read with Section 151 C.P.C. within a period of 60 days from the date of receipt of a copy of this order. It is further directed that till the disposal of that application, the status quo shall be maintained.
12. The appeal is disposed of accordingly.
