1. This is an application to revise the order of the District Munsif of Tiruvallur refusing to set aside the order declaring defendant 2 ex parte in a pending suit. Defendant 2 appeared and filed a written statement and afterwards did not appear and he was declared ex parte. Considerable time afterwards he appeared and wanted the ex-parte order to ,be set aside. The District Munsif refused to set aside the order making him ex parte as it was passed so far back as 22nd August 1925. When a person once files a written statement and then absents himself and in consequence is made ex parte, if ha afterwards appears and wants to fight the suit, he should be allowed to come in at the stage at which the suit is. He should not be shut out altogether on the ground that he was once placed ex parte. This point was decided by my brother Wallace, J., so far back as 27th July 1925. The case is reported in Venkatasubbiah v. Lakahsminarasimham A. I. R. 1925 Mad. 1274 It does not appear that this case was brought to the notice of the District Munsif. I think the proper order would be to allow this revision petition and set aside the order of the District Munsif and direct the petitioner to pay the respondent's costs. No orders necessary on the stay petition.
Madras High Court
(Oct 31, 1927)
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Case Information
Smart Summary (Beta)
Structured Summary of the Provided Opinion
Factual and Procedural Background
This is an application for revision of an order made by the District Munsif of Tiruvallur, which refused to set aside an order that had declared the second defendant (hereafter "defendant 2") ex parte in a pending suit.
The sequence of events, as stated in the opinion, is:
- Defendant 2 initially appeared in the suit and filed a written statement.
- Subsequently, defendant 2 ceased to appear and, as a result, was declared ex parte by the trial court (the ex parte order was passed on 22nd August 1925).
- After a considerable interval, defendant 2 again appeared and sought to have the ex parte order set aside so that he could contest the suit.
- The District Munsif refused to set aside the ex parte order, citing the lapse of time since the order was passed.
- The present opinion addresses a revision petition seeking to overturn the District Munsif's refusal.
Legal Issues Presented
- Whether a party who has filed a written statement, subsequently becomes absent and is declared ex parte, and later appears seeking to contest the suit, should be permitted to be restored to contest the suit at the stage at which the suit then stands.
- Whether the mere lapse of considerable time since an ex parte order was passed (the order having been passed on 22nd August 1925 in this instance) is a sufficient reason to refuse to set aside that ex parte order.
Arguments of the Parties
Applicant's Position (Defendant 2)
- Defendant 2 had originally appeared and filed a written statement and, on reappearing after the period of absence, sought to have the ex parte order set aside so that he could contest the suit.
Trial Court's Position (District Munsif)
- The District Munsif refused to set aside the ex parte order, on the ground that the order was passed long ago (specifically on 22nd August 1925), and therefore declined to restore the defendant to contest the suit.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Venkatasubbiah v. Lakahsminarasimham, A. I. R. 1925 Mad. 1274 (decision of Wallace, J., dated 27th July 1925) | The principle that when a person once files a written statement and thereafter absents himself and is made ex parte, if he afterwards appears and wishes to contest the suit he should be allowed to be restored to the proceedings at the stage at which the suit then stands and should not be shut out simply because he was earlier placed ex parte. | The court noted this authority as deciding the point in favour of allowing a reappearance and restoration; it observed that the District Munsif did not appear to have brought this decision to his notice and relied on the principle to allow the revision petition and set aside the trial court's order. |
Court's Reasoning and Analysis
The court's reasoning, as set out in the opinion, proceeded along the following lines:
- The factual pattern before the court—initial appearance and filing of a written statement by defendant 2, subsequent absence and declaration of ex parte status, followed by a later application to set aside that ex parte order—was identified.
- The court articulated the legal principle (as previously decided by Wallace, J., in the cited authority) that a party who has once filed a written statement and is later declared ex parte should, upon subsequent appearance, be permitted to re-enter the suit and contest it at the stage at which the proceedings stand; such a party should not be permanently shut out merely because he was earlier placed ex parte.
- The court observed that the District Munsif appears not to have been informed of the authority that decides this point in favour of restoration, and that the Munsif's refusal was based on the fact that the ex parte order had been passed some time ago (22nd August 1925).
- Applying the cited principle to the facts, the court concluded that the District Munsif's refusal to set aside the ex parte order was incorrect and that the proper course was to allow the revision petition, set aside the order making defendant 2 ex parte, and impose costs on the petitioner (i.e., direct the petitioner to pay the respondent's costs).
- The court further noted that no orders were necessary on the stay petition before it.
Holding and Implications
Holding: The court allowed the revision petition and set aside the District Munsif's order that had declared defendant 2 ex parte.
Consequences and immediate implications:
- The order of the District Munsif refusing to set aside the ex parte order was set aside.
- The petitioner was directed to pay the respondent's costs.
- No orders were made on the stay petition (the court stated "No orders necessary on the stay petition").
- The court applied an existing precedent to permit restoration of a defendant who had previously filed a written statement and later been declared ex parte; the direct effect on the parties is restoration (per the principle) and the payment of costs as directed. The opinion does not purport to establish a new precedent beyond applying the cited authority to these facts.
Note: This summary is drawn exclusively from the text of the provided opinion and does not add or infer facts beyond that text.
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