' The facts leading to this revision briefly are that on 2-7-1979 Muhammad Akmal Baig petitioner filed suit for the recovery of rupees 5 lacs as damages against Tahawar Ali Khan and L.D.A. Lahore, respondents in the Court of Senior Civil Judge, Lahore. Tahawar Ali Khan respondent filed written statement in the case. Issues were framed and the case was fixed for the evidence of the plaintiff on 31-5-1981. On this date, the learned counsel for the plaintiff and the learned counsel for L.DA., Lahore, defendant No,2 were present but neither Tahawar Ali Khan defendant No,1 nor his counsel entered appearance. So, he (defendant No,1) was ordered to be proceeded against ex parte.
Without getting the order for ex parte proceedings set aside, defendant No,1 participated in the proceeding and also cross-examined the plaintiff/Petitioner's witnesses. However, on 19-124982, the defendant/respondent No,1 filed application for setting aside the ex parte proceedings which was dismissed by the learned trial Court on 27-6-1983. He then filed application under Order 47, rule 1, C.P.C. For the review of the order dated 27-6-1983, which was also dismissed by the trial Court on 8-12-1985. Despite the rejection of the aforesaid application, respondent No,1 continued to participate in the proceedings and he also cross-examined the witnesses of the plaintiff. On 1-10- 1988 the plaintiff/petitioner closed his evidence and the case was fixed for the evidence of the defendants for 28-1-1989. Since 28-1-1989 was declared public holiday, so the case was placed before the learned trial Court on 29-1-1989. On 29-1-1989 the case was adjourned for the evidence of the defendants to 25-3-1989. On 25-3-1989, in view of the ex parte order against defendant No,1, the trial Court adjourned the hearing of the case to 27-5-1989 for the evidence of defendant No,2.
On 26-5-1989 Tahawar Ali Khan defendant No,1 made application for permission to produce his evidence. The application was resisted. The trial Court accepted this application on 18-1-1990, hence this revision.
2. Learned counsel for the petitioner argued that since not only the application of defendant/respondent No,1 for setting aside order for ex parte proceedings dated 19-12-1982 was dismissed on 27-6-1983 but application for the review of the order dated 27-6-1983 was also dismissed on 8-12-1985 by the trial Court, therefore, there was no legal justification to allow the defendant to lead his evidence.
3. I have considered the submissions made by the learned counsel with care. I have not been able to persuade myself to agree with him, for the reasons that the order dated 19-12-1982 for ex parte proceedings against the petitioner was not warranted in law and even otherwise defendant/respondent No,1 as a matter of right, was entitled to produce his evidence. Rule 11, Order IX, C.P.C. May be quoted advantageously:-- R.11, O.IX, C.P.C.
"Where there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear."
It is thus very much obvious that the trial Court could not have passed order for ex parte proceedings against the petitioner on 19-12-1982. Furthermore, issues had already been framed before 19-12-1982. There was no legal bar for his subsequent participation in the proceedings. In the instant case, he not only participated in the proceedings but was also allowed to cross-examine the witnesses produced by the plaintiff. He has nowhere asked for setting aside proceedings conducted before 1942-1982. For all these reasons, I am convinced that despite order dated 27-6- 1983 whereby his prayer for setting aside the ex parte order was declined and the order dated 8- 12-1985 rejecting the prayer for the review of the order dated 27-6-1983, defendant No,1 was entitled to lead his evidence in proof/disproof of the issues and as such, the order dated 18-1-1990 of the trial Court allowing him to produce his evidence was/is quite lawful and no exception can be taken to it.
' Pursuant to the above discussion, there being no merit, the revision is dismissed in limine.