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2014 DIGILAW 375 (JK)

Jyoti Devi v. Ld. Munsiff, Basohli

2014-09-04

JANAK RAJ KOTWAL

body2014
ORDER : Brief question raised in this petition under section 104 of the Jammu and Kashmir Constitution (for short the State Constitution) read with Article 227 of the Constitution of India is : Whether an application for setting aside ex parte proceedings would lie and ex parte proceedings can be set aside after final arguments in a suit have been heard and judgment reserved? 2. Facts, briefly stated, leading to this petition are that petitioner Jyoti Devi has filed a petition under Section 13(2) of Hindu Marriage Act against her husband, respondent Des Raj, in the Court of learned Munsif, Basohli. This petition was filed on 29-05-2012. Respondent appeared before the learned trial Court on 6-7-2012. He appeared on some more dates of hearing but was set ex parte on 13-2-2013. The learned trial court recorded petitioner s evidence ex parte, closed her evidence on 31-10-2013 and listed the case for final arguments. Final arguments were heard in part on 31-12-2013, concluded on 18-1-2014 and the judgment was reserved for 17-2-2014. However, it appears immediately after the conclusion of the arguments and reserving the judgment on 18-1-2014, an Advocate, Shri S. K. Abrol, appeared on behalf of the respondent and filed an application for setting aside the ex parte proceedings against the respondent. 3. Petitioner filed objections to this application on 13-3-2014. On 29-3-2014, learned trial Court allowed the application subject to payment of Rs. 5,000/- as costs and adjourned the case to 17-4-2014. Learned trial Court, seems to have taken up, the case on 18-4-2014, when respondents counsel moved an application for waiver of costs imposed on 29-3-2014. 4. Petitioner invokes supervisory jurisdiction of this Court under section 104 of the State Constitution for setting aside order dated 29-3-2014, whereby the trial Court has set aside the ex parte proceedings as also the order passed by the learned court on 18-4-2014. 5. I may, as it is apt, reproduce the orders passed by the learned trial Court on 18-1-2014 and 29-3-2014 : ‘18-1-2014. Counsel for petitioner presented ex parte arguments in open Court which has been heard. Petitioner also present, put up for orders on 17-2-2014. At this stage Adv. S. K. Abrol appear on behalf of respondent and file application for setting aside ex parte proceedings. Copy of the application has been given to counsel of petitioner. Put up for objections on applications by petitioner on 17-2-2014’. ‘29-3-2014. Petitioner also present, put up for orders on 17-2-2014. At this stage Adv. S. K. Abrol appear on behalf of respondent and file application for setting aside ex parte proceedings. Copy of the application has been given to counsel of petitioner. Put up for objections on applications by petitioner on 17-2-2014’. ‘29-3-2014. Counsel for parties present. Both the counsel present for arguments. Arguments heard. On the part of counsel of respondent/ applicant, respondent has engaged his counsel from Kathua but due to negligence of counsel as he never file Vakalatnama and never appear on the behalf of respondent, ex parte proceeding were initiated. As itis negligence of counsel and as time period of one year has lapsed and in the interest of justice, the application for setting aside ex parte proceedings was allowed by imposing cost of Rs. 5,000/- to be paid to the petitioner. Counsel for respondent Des Raj, i.e. Adv. Harish Sharma undertakes to pay cost positively on next date of hearing otherwise application be dismissed. Put up on 17-4-2014’. 6. The question arising in this petition is no more res integra as far as this Court is concerned. An application by the defendant for setting aside ex parte proceedings, which lies under Order 9, Rule 7, CPC, can be moved during the course of hearing of the suit, that is, after the defendant is set ex parte till hearing of final arguments in the suit. However, neither an application under Order 9, Rule 7, CPC would lie nor ex parte proceedings can be set aside after final arguments in the case are heard and order reserved. Remedy available to the defendant in that case is only to file an application for setting aside the ex parte judgment and decree under Order 9, Rule 13, CPC, if the suit is decreed against him. This view is ascertainable from the judgment of the Supreme Court in Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 . Remedy available to the defendant in that case is only to file an application for setting aside the ex parte judgment and decree under Order 9, Rule 13, CPC, if the suit is decreed against him. This view is ascertainable from the judgment of the Supreme Court in Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 . This Court in Suman Sharma v. Bhupinder Singh, 2005 (2) JKJ 473 , while relying upon Arjun Singh s case (supra) has held : In view of the ratio of the aforesaid judgment and keeping in view the provisions of Order 9, R. 7, CPC the only remedy available to the defendant against whom ex parte proceedings had been initiated and case reserved for final judgment is to seek setting aside of the ex parte decree in the event any decree is passed by invoking the provisions of Order 9, Rule 13, CPC. The provisions of O.9, R. 7 cannot be invoked in such a situation where the case is reserved for judgment. 7. Likewise, this Court in Service Selection Board and Ors. v. Ulfat Jan and others, 2007 (2) JKJ 145 , while referring to Rule 7 of Order 9, CPC and relying upon Arjun Singhs case ( AIR 1964 SC 993 ) (supra) held in paras 15 of the reporting as under : 15. This provision of law provides when and how an application for setting aside the ex parte proceedings can be filed. This provision mandates that application can be filed when the case is adjourned for hearing. Application will not lie if hearing is concluded. That means if arguments are heard judgment is reserved and the court has to pronounce judgment then at that stage the application for setting aside the ex parte proceedings would not lie. 8. Further in para-17 this Court has held as under : 17. Keeping in view the mandate of Order 9, Rule 7 of the Code and the judgment of the Apex Court (supra) the application would be maintainable when the hearing is not concluded. It could not be said and held that if a case is adjourned to next date for hearing, the application would not lie. The provisions mandates that till conclusion of the hearing the application is maintainable. But when hearing is concluded application would not lie. 9. For the aforementioned, the question framed above is replied in negative. It could not be said and held that if a case is adjourned to next date for hearing, the application would not lie. The provisions mandates that till conclusion of the hearing the application is maintainable. But when hearing is concluded application would not lie. 9. For the aforementioned, the question framed above is replied in negative. Accordingly, the petition is accepted and the impugned order dated 29-3-2014 is set aside. Learned trial Court is directed to pronounce the final judgment in the petition. 10. Disposed of along with connected CMA. 11. Petitioner to produce a copy of this order in the trial Court forthwith. Petition allowed.