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 However, the prayer of the plaintiff was granted and the suit was dismissed as withdrawn by order dated 2.2.1996 (Annexure P-4), and the defendants were permitted to pursue their counter-claim filed in the suit.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. : [1955]2SCR1 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 the order dated 28.1.2002 impugned in this revision petition.
7. I have heard learned Counsel for the parties and have gone through the record with their assistance. I do not find any merit in the submissions made by the learned Counsel for the petitioners.
8. It would be advantageous to reproduce the provision of Order 9 Rule 7 of the Code of Civil Procedure (in short 'the Code') which is relevant for adjudication of the present controversy. The said provision read thus:
ORDER IX
APPEARANCE OF PARTIES AND CONSEQUENCE OF
NON-APPEARANCE
7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.- Where the court has adjourned the hearing of the suit exparte, 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 to costs or otherwise, be heard in answer to the suit as if he had appeared the day fixed for his appearance.
9. The aforesaid provision came up for consideration before the Apex Court in San-gram Singh's case (supra) wherein it was laid down as under:
28. Then comes R.7 which provides that if 'at an adjourned' the defendant appears and shows good cause for his previous non-appearance he can be heard in answer to the suit.
as if he had on the day fixed for his appearance.
This cannot be read to mean, as it has been by some learned judges, that he cannot be allowed to appear at all if, he does not show good cause. All it means is that he cannot be relegated to the position be would have occupied if he had appeared.
Therefore, if a party does appear on the day to which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing.
10. From the above, it clearly emerges that a defendant who has been proceeded ex parte can always join proceedings from the stage at which he appears, even though the ex parte order had not been set aside. It needs to be noticed that the status of the plaintiff in the counter-claim is that of a defendant.
11. Applying the aforesaid legal principle to the facts of the present case, it deserves to be noticed that the trial Court vide order dated 2.2.1996 had ordered the suit to be dismissed as withdrawn and the counter claim was ordered to be proceeded ex parte against the plaintiff-respondent, however, the said order was challenged before this Court in Civil Revision No. 686 of 1996 and further proceedings before the trial Court were stayed, no proceedings could take place till the revision petition was dismissed by this Court. Thereafter, an application was filed by the plaintiff before the trial court for permission to join the proceedings. The application was allowed on 22.8.1996 and the plaintiff was allowed to join the proceedings. The plaintiff had already filed reply to the counter-claim on 30.5.88 and even issues thereafter had been framed on 28.4.1989. The plaintiff was proceeded ex parte on 2.2.1996 and was allowed to join the proceedings vide order dated 22.8.96 and no proceedings had taken place during the period from 2.2.1996 to 22.8.1996 and the trial court was, thus, right in allowing the plaintiff to adduce evidence to substantiate the plea in the reply to the counter-claim when the defendants evidence was closed.
12. Now adverting to the cases relied upon by the learned Counsel for the petitioner, suffice it to say that the same do not advance the case of the defendant-petitioners any further. The legal principles enunciated therein are well recognized. The Apex Court in Sangram Singh's case (supra) had laid down that the party which has been proceeded ex parte, can always join the proceedings from the stage at which that party appears. The said principles have been rightly applied in the present case and the aforesaid judgment rather supports the case of the plaintiff-respondent and does not help the defendant-petitioners.
13. However, Modula India (supra) and Phool Kanwar and Ors. (supra) were the cases where the written statement was struck off from the record or no written statement was filed at all, and it was in that eventuality, the defendant was not allowed to lead evidence as there were no pleadings. The facts in the present case are not to the same effect. Therefore, the judgments relied upon by the counsel for the petitioner do not come to the rescue of the defendant-petitioners.
14. In view of the above, finding no merit in the revision petition, the same is-dismissed with no order as to costs. As the record shows, the matter is about two decades old. It would, therefore, in the interest of justice be appropriate to direct the trial court to give special attention to dispose of the matter, as early as possible, but not later than a period of six months when a copy of the present order is received.