Judgment:
1. This is plaintiff's appeal against the Judge whereby the decree of the trial Court passed in favour of the plaintiff was set aside and the case was remanded for fresh decision.
2. During the trial, ex parte proceedings were taken against the defendant on March 6,1981. On that date, the plaintiff examined his two witnesses. On the very next date, i.e. March 7,1981, an application for setting aside the ex-parte proceedings was filed. Therein, the prayer made was that the defendant be allowed to cross-examine the two witnesses of the plaintiff examined on March 6,1982.That application was allowed on January 25,1982 and the case was fixed for March30,1982 for cross-examining the said witnesses. Orr that date, in spite of the opportunity having been afforded to the defendant, no cross-examination was made of the said two witnesses. Ultimately, the trial Court decreed the plaintiff's suit vide its judgment and decree dated February 5,1983. In appeal, it was contended on behalf of the defendant, that if the statement of P.W 4 Kamal Singh plaintiff and that of P.W.5 Chander are excluded out of consideration, then the suit of the plaintiff is bound to fail. According to the lower appellate Court, since these two witnesses were examined in the absence of the defendant and they being the material witnesses, the fate of the case is dependant on their statements. It has been further observed that the counsel for the defendant might have been under the impression that the cast is fixed for fresh evidence of the plaintiff and that if that if that was not done then there was nothing to be cross-examined. On that basis, the decree of the trial Court was set aside and the case was remanded for fresh decision after affording the parties sufficent opportunity to probe their case.
3. The learned counsel for the appellant contended that it was a case where ex parte proceedings were set aside under Order 9 Rule 7,C.P.C and therefore, the defendant was entitle to proceed form the stage he was proceeded ex parte. Moreover, argued the learned counsel, the only prayer made in the application filed under Order 9 Rule 7,C.P.C. was that the defendant be allowed to cross examine the two witnesses examined on March 6,1981. That prayer was allowed. In spite of that, the defendant did not avail of the opportunity of cross-examining on March 30,1982. According to the learned counsel, the whole approach of the lower appellate Court in this behalf is wrong, illegal and misconceived. In support of his contention, he referred to Kumara Pillai v. Thomas, AIR 1961 Ker 287.
4. After hearing the learned counsel for the appellant, I find force in the contention raised on behalf of the appellant. The defendant against whom an order declaring him to be proceeded ex parte was passed on the date of the first hearing is entitled to come in and take part in the trial at a later stage. If he agrees to be bound by what has taken place during his absence he need not make an application under Order 9 Rule 7,C.P.C. for getting the order set aside; he can continue from the stage at which he appears. However, if he desires to cross-examine the witnesses examined before he entered appearance he can apply under Rule 7 of Order 9 and get an order, in which case he can claim an opportunity to cross-examine the witnesses examined before he entered appearance he can apply under Rule 7 of Order 9 and get an order, in which case he can claim an opportunity to cross-examine the witnesses examined before he entered appearance. In such a case, he seeks to be relegated back to the position he would have been if he were present on the day on which evidence was taken in his absence. Had he been so present, he would have got an opportunity to cross-examine plaintiff's witnesses. This is the right which he can exercise after getting an order under Order 9 Rule 7, C.P.C. for getting the order set aside; he can continue from the stage at which he appears. However, if he desires to cross-examine the witnesses examined before he entered appearance he can apply under Rule 7 of Order 9 and get an order, in which case he can claim an opportunity to cross-examine the witnesses examined before he entered appearance, In such a case, he seeks to be relegated back to the position he would have been he entered appearance. In such a case, he seeks to be relegated back to the position he would have been if he were present on the day on which evidence was taken in his absence. Had he been so present, he would have got an opportunity to cross-examine plaintiff's witnesses. This is the right which Order under Order 9 Rule 7, C.P.C.. It was so held in Kumara Pillai's case Supra.
5. In the present case, the defendant was allowed that opportunity under Order 9,Rule 7, C.P.C. after setting aside the ex parte proceedings on January 25,1982. In spite of that the opportunity to cross-examine the witnesses was not availed of on March 30,1982. The approach of the lower appellate Court in this behalf is wholly wrong and misconceived. The defendant has been unable to show that on what account the opportunity of cross-examination was not availed on March 30,1982. In these circumstances, this appeal succeeds, the order of the remand is set aside and the case is sent back to the Additional District Judge, Sonepat, for deciding the appeal on merits in accordance with law. The appellant through his counsel is directed to appear in the Court of the Additional District Judge, Sonepat on July 19,1985.
6. Appeal allowed.