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1985 DIGILAW 471 (ALL)

Mohan Meakin Ltd. , LKO. Another v. Ahuja Transport Agency, LKO.

1985-04-25

K.N.GOYAL

body1985
JUDGMENT K.N. Goyal, J. - This is plaintiffs' revision directed against an order passed by the trial court permitting the defendants to contest the suit, Earlier the trial court had passed an order in the absence of the defendants that the case shall proceed ex parte against them. Thereafter the plaintiffrevisionists led evidence. After conclusion of the evidence the case was reserved for judgment. Before the judgment could be delivered the defendants put in appearance and explained the cause of their earlier nonappearance. That cause was held to be sufficient cause and the defendants were permitted to contest the suit on payment of Rs. 100 as costs to the plaintiffrevisionists. 2. The contention of the learned counsel for the revisionists is that such an order could not have been passed under O. 9. R. 7 CPC which reads as follows : 7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous nonappearance. 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 nonappearance, 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 hr. appearance. It has been contended that this rule could be invoked only at a stage when some further hearing was to take place and not when the hearing had already concluded and only judgment remained to be delivered. In support of this contention reliance has been placed on the decision of the Hon'ble Supreme Court in Arjun Singh v. Mohindra Kumar, ( AIR 1964 SC 993 ). In that case an application given by the defendant after conclusion of hearing and before delivery of judgment had been rejected by the trial court and thereafter an ex parte decree was passed. The defendant then moved for setting aside the ex parte decree. This application was allowed. It was contended on behalf of the plaintiff that the application to set aside the ex parte decree was barred by the principle of res judicata because the defendants' earlier application under O. 9, R. 7 had been rejected. 3. The defendant then moved for setting aside the ex parte decree. This application was allowed. It was contended on behalf of the plaintiff that the application to set aside the ex parte decree was barred by the principle of res judicata because the defendants' earlier application under O. 9, R. 7 had been rejected. 3. This contention was rejected by the Hon'ble Supreme Court holding that as the trial court had no power under O. 9, R. 7 CPC or under Section 151 CPC to permit the defendant to contest the suit at the stage when the judgment only was reserved the order passed by the trial court at could not operate as res judicata. 4. The jaw laid down by the Hon'ble Supreme Court is binding on his Court and as such it may be said that the trial court's order was not strictly in accordance with law. 5. But the fact of the matter is that the opposite parties satisfied the trial court that there was sufficient cause for their earlier nonappearance This implies that if an ex parte decree were to be passed against them the ex parte decree is bound to be set aside under Order 9, Rule 13 CPC. Hence no useful purpose would be served by interfering in this revision. Under Section 115 CPC interference in revision is discretionary even where the order passed by the Court below is illegal or is in excess of jurisdiction where substantial justice has been done and no irreparable injury is caused to the revisionist. 6, In this view of the matter the revision is dismissed in limine. (Revision dismissed).