SURAJ PRAKASH JAIN v. CHANDER PRAKASH JAIN — 1997 DIGILAW 243 (DEL)

M. K. Sharma ( 1 ) THIS order shall dispose of the application filed by the defendants No. 1 and 6 under Order 9 Rule 7 for setting aside the ex parte order dated 9. 7. 1991. ( 2 ) THE plaintiff instituted the suit against the defendants seeking for partition of properties and possession of separate share of the plaintiff and rendition of accounts. The plaintiff and the defendants No. 1 to 4 are brothers and are sons of late Dr. Nihal Chand Jain who died on 30. 12. 1970. The defendant No. 5 was a minor at the time of the institution of the suit and, therefore, he was represented by his father, the natural guardian. The defendants appeared in the suit and filed written statements, contesting the statements made in the plaint. A joint written statement on behalf of defendants No. 5 and 6 was filed. Defendant No. 1 filed his own written statement. On the pleadings of the parties,issueswerealso framed. The dates of trial in the case were fixed from 1st May, 1991 to 3rd May, 1991 and 6th and 7th May, 1991. On 1st of May, 1991, at the request of the Counsel for the plaintiff, the suit was adjourned to2. 5. 1991 for recording of evidence. On 2. 5. 1991, it was reported by the Counsel for the plaintiff that the constituted attorney of the plaintiff had since expired and that the Counsel was unable to obtain any instructions. Accordingly, the Court directed the suit to be listed on 13. 5. 1991 and the dates of trial fixed were cancelled and it was ordered by the Court that fresh dates, if required, would be fixed. ( 3 ) ON 13. 5. 1991, none appeared on behalf of the parties, and therefore, the Court directed the suit to be renotified on 9. 7. 1991. On 9. 7. 1991, the Counsel for the plaintiff was present in Court whereas none appeared on behalf of the defendants. This Court recorded that no one appeared on behalf of the defendants after 7. 12. 1989 although the case was listed for hearing on several occasions and in that view of the matter, the Court directed that the defendants shall be proceeded ex parte. This Court recorded that no one appeared on behalf of the defendants after 7. 12. 1989 although the case was listed for hearing on several occasions and in that view of the matter, the Court directed that the defendants shall be proceeded ex parte. The request ofhe Counsel for the plaintiff for leave to lead evidence on affidavits was accepted and the affidavits were directed to be filed within six weeks. On 16. 12. 1991, it appears that the Counsel for the defendants appeared in the Court, but since the Court was not sitting on that day, the suit was adjourned to 10. 3. 1992. It appears further from the records that inspite of the order passed by the Court, no affidavit by way of evidence came to be filed by the plaintiff. ( 4 ) THE defendants No. 11 and 6 filed the present application under Order 9 Rule 7 on or about 10. 8. 1994 seeking for setting aside the ex parte order passed on 9. 7. 1991. It appears that subsequent to the filing of the aforesaid application by the defendants No. 1 and 6, the plaintiff filed his affidavit by way of evidence. ( 5 ) I have heard the learned Counsel appearing for the plaintiff as also for the defendants No. 1 and 6. The Counsel appearing for the defendants No. 1 and 6 submitted before me that the suit was not fixed for hearing on 9. 7. 1991 and accordingly no order could have been passed by this Court for proceeding the case ex parte as against the defendants No. 1 and 6 on the ground of their nonappearance. Their further submission is that there was good cause for the nonappearance of the defendants No. 1 and 6 on 9. 7. 1991, and therefore, the ex parte order is required to be set aside. ( 6 ) THE learned Counsel appearing for the plaintiff, however, states that no good cause has been shown by the defendants No. 1 and 6 in their application filed under Order 9 Rule 7 of the Code of Civil Procedure and that no explanation worth the name has been set out in the said application for their absence on the relevant date, and as such, the application is required to be dismissed. Rule 6 of Order 9 of the Civil Procedure Code provides that when a suit is called on for hearing, if the plaintiff appears and the defendant does not appear and if it is proved that the summons were duly served, the Court may make an order that the suit be heard ex parte. The remaining provision of the aforesaid is not relevant for our purpose. On the other hand. Rule 7 of Order 9 of the Civil Procedure Code provides that if at an adjourned hearing the defendant appears and shows good cause for his previous non-appearance, he can be heard in answer of the suit as if he had appeared on the date fixed for his appearance. It has been held by the Supreme Court in Sangram Singh v. Election Tribunal Kotah and Another reported in AIR 1955 Supreme Court 425 that when an order is passed for proceeding ex parte, it means that when the defendant is served and has been afforded an opportunity of appearing, then if he does not appear, the Court might proceed in his absence. It was further held that the provisions of Rule 7 of Order 9 cannot be read to mean that he cannot be allowed to appear at all if he does not shows good cause. The Supreme Court has laid down that if a party does appear on the date 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. The subsequent decision of the Supreme Court in Arjun Singh v. Mohindra Kumar and Others reported in 1964 5 SCR page 946 also has laid down that Order 9 Rule 7 does not put an end to the litigation nor does it involve the determination of any issues in controversy in suit. ( 7 ) THE proposition^ law settled by the aforesaid decision is that under Rule 6, if the defendant wants to proceed from the stage already reached, he will have an absolute right to do so without obtaining permission to take part in the proceeding from that stage as well. ( 7 ) THE proposition^ law settled by the aforesaid decision is that under Rule 6, if the defendant wants to proceed from the stage already reached, he will have an absolute right to do so without obtaining permission to take part in the proceeding from that stage as well. But when the defendant wants the Court to retrace its steps and desires to be relegated back to the position in which he would have been put if he would have appeared on the previous hearing, so that the proceedings in his absence could be re-opened he will have to make an application as envisaged under Rule 7, ( 8 ) IN the-present suit, it is found that on the date when the order was passed by this Court for proceeding ex parte as against the defendants, the suit was not fixed for actual hearing. Besides, after issuing the direction for proceeding the suit ex parte as against the defendants, although the Court allowed the plaintiff to file its affidavit by way of evidence, no such affidavit was filed by the plaintiff and the same came to be filed in the suit only after the present application was filed by the defendants No. 1 and 6. Under the ratio of the decision of the Supreme Court, the defendants No. 1 and 6 cannot be prevented from participating in the proceedings from the stage after filing of the evidence even if the application filed by the said defendants made under Order 9 Rule 7, Civil Procedure Code is not entertained and would be entitled to cross-examine the witnesses of the plaintiff and also produce their own witnesses and argue the suit. The plaintiff also neglected to file its affidavit by way of evidence within the stipulated time allowed by the Court. ( 9 ) CONSIDERING all the aforesaid factors and on going through the averments made in the application, I find that good and sufficient cause has been made out by the defendants No. 1 for setting aside the ex parte order passed by this Court on 9. 7. 1991 directing for proceeding the suit exparte as against the said defendants. If the order as prayed for is set aside, the defendants No. 1 and 6 would be entitled to the same rights of cross examining the witnesses produced by the plaintiff and also produce their witnesses and argue the suit. 7. 1991 directing for proceeding the suit exparte as against the said defendants. If the order as prayed for is set aside, the defendants No. 1 and 6 would be entitled to the same rights of cross examining the witnesses produced by the plaintiff and also produce their witnesses and argue the suit. Since in the facts and circumstances of the present case, effect under both circumstances would be the same and also on consideration of the aforesaid factors, in my considered opinion, this is a fit and appropriate case where the order passed by this Court on 9. 7. 1991 directing for proceeding the suit exparte as against the defendants No. 1 and 6 is required to be set aside which I hereby do subject to payment of cost of Rs. l,000. 00 by the defendants No. 1 and 6 to the plaintiff within four weeks. ( 10 ) ACCORDINGLY, I direct that : (A) the plaintiff may lead his own evidence by producing the witnesses or else the affidavit filed by the plaintiff by way of evidence would be treated as the evidence recorded in examination in chief and the defendants No. 1 and 6 would be permitted to cross examine the witness. (B) the plaintiff is also allowed to lead any further evidence in support of its case if it so chooses and on production of any such witness, the defendants No. 1 and 6 would be permitted to cross examine the said witness (s ). (E) the defendants are also allowed to adduce their evidence and on such production of their witnesses, they would be allowed to be cross examined by the plaintiff. Fresh dates of trial are fixed in the suit as 17th and 18th of November, 1997. List this matter before the Joint Registrar for scrutiny on 13. 5. 1997.