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Himachal Pradesh High Court · body

2001 DIGILAW 41 (HP)

BIHARI LAL v. JAGAR NATH SHARMA

2001-03-26

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J.—This revision petition raises the following questions for determination:— (i) Whether an application under Order IX Rule 7 of the Code of Civil Procedure (hereafter referred to as the code) for setting aside an order directing ex parte proceeding against defendant(s) in a suit can be moved and maintained when final arguments have been heard in the suit and the judgment has been reserved; and (ii) Whether inherent jurisdiction of the Court under Section 151 of the Code can be invoked to set aside the ex parte order in such a situation? 2. I have heard the learned Counsel for the parties and have gone through the records. 3. The material and admitted facts of the case are that in a suit instituted by the respondent/plaintiff (hereafter referred to as the plaintiff), the petitioners/defendants (hereafter referred as the defendants) were ordered to be proceeded ex parte by the learned trial Judge vide order dated 21.12.1996 as they failed to appear and file written statement. Thereafter the learned trial Judge, after recording ex parte evidence of the plaintiff, finally heard the arguments on 26.6.1998 and the suit was ordered to be listed for judgment on 4.8.1998. The defendants moved an application on 3.8.1998 for setting aside the exparte order dated 21.12.1996. On objection raised by the plaintiff, the learned trial Judge dismissed the application on the ground that the hearing in the suit was complete, therefore, the application under Order IX Rule 7 read with Section 151 of the Code was not maintainable. Feeling aggrieved, the defendants have preferred the present petition. 1. Rule 7 of Order IX of the Code reads as under:— "Rule 7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.— 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. It is unambiguously clear from a bare reading of the above provisions that these provisions can be invoked at any time before the conclusion of the hearing in the suit. It is unambiguously clear from a bare reading of the above provisions that these provisions can be invoked at any time before the conclusion of the hearing in the suit. Once the final arguments are heard and the suit is reserved for judgment, then it cannot be said that the suit has been "adjourned for hearing." Hearing means an effective hearing when the Court is bound to hear the parties. At the stage of preparing/dictating judgment the Court does not hear the parties but examines and analyses the records and the arguments already submitted. Thus, this being a stage after "hearing" there is no scope for making an application under Order IX Rule 7 of the Code. 6. While dealing with a similar question, the Honble Apex Court in Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993, held as follows:— "17. Adverting to the facts of the present appeal, this would primarily turn upon the proper construction of the terms of Order IX Rule 7. The opening words of that rule are, as already seen, Where the Court has adjourned the hearing of the suit ex parte. Now, what do these words mean? Obviously they assume that there is to be a hearing on the date to which the suit stands adjourned. If the entirety of the "hearing" of the suit has been completed and the Court being competent to pronounce the judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under Order XX Rule 1, there is clearly no adjournment of "the hearing" of the suit, for, there is nothing more to be heard in the suit. It was precisely this idea that was expressed by the learned Civil Judge when he stated that having regard to the stage which the suit had reached the only proceeding in which the appellant could participate was to hear the judgment pronounced and that on the terms of Rules 6 and 7 would permit him to do that. If, therefore the hearing was completed and the suit was not "adjourned for hearing", Order IX Rule 7 could have no application and the matter would stand at the stage of Order IX Rule 6 to be followed up by the passing of an ex parte decree making Rule 13 the only provision in Order IX applicable. If, therefore the hearing was completed and the suit was not "adjourned for hearing", Order IX Rule 7 could have no application and the matter would stand at the stage of Order IX Rule 6 to be followed up by the passing of an ex parte decree making Rule 13 the only provision in Order IX applicable. If this were the correct position, it would automatically follow that the learned Civil Judge would have no jurisdiction to entertain the application dated May 31, 1958 purporting to be under Order IX Rule 7, or pass any order thereon on the merits. This in its turn would lead to the result that the application under Order IX, Rule 13 was not only competent but had to be heard on the merits without reference to the findings contained in the previous order” 7. The application under Order IX Rule 7 of the Code having been filed in this case at a stage when final arguments had already been heard and the suit was posted for judgment, could not be legally moved and maintained. 8. It was contended by the learned Counsel for the petitioners that the application moved by the defendants was not only under Order IX Rule 7 of the Code but also under Section 151 of the Code. Therefore, there being no provision under the Code to meet the situation as in the facts and circumstances of the case, the Court could have set aside the ex parte order by invoking the inherent powers. 9. It is well settled that inherent powers of the Court cannot override the express provisions of law. Rules 7 and 13 of Order IX of the Code between them exhaust the whole gamut of situations that may arise during the course of trial of the suit. Therefore, the inherent powers of the Court could not be invoked to set aside the ex parte order. 10. The Honble Apex Court in Arjun Singhs case (supra) had also dealt with the question whether in a situation as in the case in hand, can inherent powers of the Court be invoked and has held as follows:— "19. Therefore, the inherent powers of the Court could not be invoked to set aside the ex parte order. 10. The Honble Apex Court in Arjun Singhs case (supra) had also dealt with the question whether in a situation as in the case in hand, can inherent powers of the Court be invoked and has held as follows:— "19. Thus every contingency which is likely to happen in the trial vis-a-vis the non-appearance of the defendant at the hearing of a suit has been provided for and Order IX Rule 7 and Order IX Rule 13 between them exhaust the whole gamut of situations that might arise during the course of the trial. If, thus provision has been made for every contingency, it stands to reason that there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of justice. Mr. Pathak, however, strenuously contends that a case of the sort now on hand where a defendant appeared after the conclusion of the hearing but before the pronouncing of the judgment had not been provided for. We consider that the suggestion that there is such a stage is, on the scheme of the Code, wholly unrealistic. In the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit : (1) where the hearing is adjourned or (2) where the hearing is completed. Where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Order XX Rule 1 permits judgment to be delivered after an interval after the hearing is completed. It would, therefore, follow that after the stage contemplated by Order IX, Rule 7 is passed the next stage is only the passing of a decree which on the terms of Order IX Rule 6 the Court is competent to pass. And then follows the remedy of the party to have that decree set aside by application under Order IX Rule 13. There is thus no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the lines of Order IX Rule 7." 11. There is thus no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the lines of Order IX Rule 7." 11. In view of the above legal position, the impugned order cannot be said to be illegal. 12. As a result this petition merits dismissal and is accordingly dismised with no orders as to costs. 13. The parties, through their learned Counsel, are directed to appear in the trial Court on 23.4.2001. Petition dismissed.