JUDGMENT S.U. Khan, J.
1. Heard learned Counsel for the parties and perused counter and rejoinder-affidavits. Petitioners and respondent No. 2 are defendants in O.S. No. 416 of 1993 which has been filed by respondent No. 1, Mohan Lal and is pending before Additional Civil Judge, Junior Division (III), Jaunpur. In the suit trial court on 4.1.1999 passed an order to the effect that the suit shall proceed ex parte against petitioners-defendants. Subhadra Devi defendant/respondent No. 2 had filed written statement in the suit on 3.5.1993. However, petitioners who are also defendants in the suit did not file any written statement. Petitioners-defendants filed an application before the trial court for recalling of the order dated 4.1.1999. In the application they stated that Subhadra Devi defendant No. 1 respondent No. 2 was doing pairvi on behalf of all the defendants, however, keeping the petitioners in dark she filed written statement only on her behalf and in view of this order dated 4.1.1999 was passed which deserved to be recalled. Recall application was filed on 6.7.2000. Trial court on 1.4.2004 dismissed the recall application by a cryptic order. Against the said order Revision No. 93 of 2004 was filed which was dismissed by A.D.J., Court No. IV, Jaunpur on 21.4.2005, hence this writ petition.
2. It has been stated at bar that evidence has not yet been recorded in the suit.
3. The revisional court in its detailed judgment has observed that sufficient explanation for non-appearance in the suit for seven years has not been given by the petitioners. However, as evidence has not yet started hence it was in the interest of justice that petitioners should have been permitted to file written statement and participate in the proceeding on payment of heavy cost.
4. It has been held by the Supreme Court in Arjun Singh v. Mahendra Kumar, AIR 1964 SC 993, that firstly, an application for setting aside the order directing the suit to proceed ex-parte can be filed until judgment is pronounced or reserved and secondly, even without setting aside the order directing the suit to proceed ex-parte, defendants are entitled to participate in the proceedings from the stage when they appear in the suit. Order IX, Rule 7, C.P.C. deals with the power of the Court to set aside order directing the suit to proceed ex-parte. Order IX, Rule 7, C.P.C. is quoted below :
"Where 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."
5. Learned Counsel for contesting respondent No. 1 has cited an authority of this Court in Prahlad Singh v. Niyaz Ahmad and Ors., 2000 AWC 1721, to contend that application under Order IX, Rule 7, C.P.C. can be filed only on the next date, which is fixed on the date when order directing the suit to proceed ex parte is passed. This authority has been referred to by the revisional court also. In the said authority of Prahlad Singh application under Order IX, Rule 7, C.P.C. was filed after conclusion of the evidence. It was filed on the date fixed for arguments. In the authority of Prahlad Singh it was also observed that similar application under Order IX, Rule 7, C.P.C. had earlier been rejected on merit hence subsequent application under the same provision was barred by Section 11, C.P.C. (res judicata):
6. The view that application under Order IX, Rule 7, C.P.C. can be filed only on the date fixed while directing the suit to proceed ex parte and not afterwards taken in the aforesaid authority of Prahlad Singh is neither in consonance with Order IX, Rule 7, C.P.C. which nowhere places such restriction nor with the judgments of the Supreme Court in Sangram Singh v. Election Tribunal, AIR 1955 SC 425 and Arjun Singh's case (supra). The only restriction is that the application shall be filed before the conclusion of the hearing, The said view is directly in conflict with Division Bench authority of this Court in Bhagwat Prasad v. Muhammad Shibli, AIR 1922 All 110, the relevant portion of which is quoted below :
"Bhagwat Prasad did not appear and the Court recorded an order directing that the case should be heard against him ex parte. The case however was not heard on that date, and the hearing was postponed to a subsequent date. On that date, Bhagwat Prasad appeared and asked for an adjournment to enable him to file his written statement and to put forward his defence, and to adduce his evidence. This application was refused, but the case was for some reason adjourned to another date. On that date Bhagwat Prasad again appeared and asked the Court to permit him to file his written statement; and he stated that his witnesses were present in Court and he was ready to adduce his evidence. The Court refused to listen to him and to receive his written statement, on the ground that on the first date fixed for hearing he was not present and the Court had ordered proceedings to be held ex parte against him. This view of the Court of first instance was clearly erroneous and, strangely enough it was accepted by the lower appellate court."
7. I am therefore of the view that as evidence has not yet commenced hence it will be in the interest of justice to permit the petitioners to file the written statement and participate in the proceedings on payment of heavy cost.
8. Accordingly, writ petition is allowed. Both the impugned orders dated 1.4.2004 and 21.4.2005 as well as order dated 4.1.1999 are set aside on the following condition.
9. Within one month from today petitioners shall file written statement along with Rs. 10,000 as cost through Draft drawn in the name of plaintiff/respondent No. 1.
10. If the above condition is fulfilled then petitioners shall be permitted to participate in the proceedings of the suit and the suit shall be decided positively within four months from the date of filing of written statement and payment of cost.
11. If the above condition is not fulfilled then this writ petition shall stand dismissed and impugned orders shall revive after one month.