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2015 DIGILAW 405 (UTT)

ZX Sources Pvt. Ltd. v. Sanjay Kumar Nagalia

2015-08-20

U.C.DHYANI

body2015
JUDGMENT : U.C. DHYANI, J. 1. Present Civil Revision has been filed by the defendant-revisionist being aggrieved against the order dated 04.09.2014 passed by the Civil Judge (S.D.), Dehradun in O.S. No. 45 of 2013, Sanjay Nagalia v. Z.X. Sources Pvt. Ltd. 2. A suit was filed by the plaintiff-respondent against the defendant-revisionist for cancellation of sale deed. On 04.12.2013, the defendant did not appear on the date of hearing. On the selfsame day, the suit was directed to be proceeded ex-parte against the defendant and the case was fixed for 03.03.2014 for adducing evidence of the plaintiff. 3. On 03.03.2014, the suit was again adjourned to 06.05.2014. In the meanwhile, on 07.04.2014, an application under Order 9 Rule 7 CPC was moved on behalf of the defendant to set aside the order whereby the suit was directed to be proceeded ex-parte against the defendant. This application was dismissed by the impugned order dated 04.09.2014 on the ground that the said application was not maintainable. 4. Learned counsel for the respondent relied upon a decision of Hon'ble Allahabad High Court in Prahlad Singh v. Niyaz Ahmad, AIR 2001 Allahabad 78 (Lucknow Bench), whereby it was held: “6. In this case, admittedly the summons were duly served upon the defendants-petitioners. The Court was therefore, rightly passed the order on 19.5.1994 to proceed ex parte under the aforesaid rule. The next date fixed for hearing after 19.5.1994 was 15.7.1994. Order IX, Rule 7, C.P.C. reads as under: “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 appeared on the day fixed for his appearance”. 7. The application under Order IX, Rule 7. C.P.C. as it is evident from the reading of the aforesaid rule, can be filed at or before the next date fixed for hearing. In the Instant case, admittedly the application under Order IX, Rule 7. C.P.C. was filed by the petitioners on 6.8.1994. It was the date after the next date fixed under Order IX. Rule 6. C.P.C. 8. C.P.C. as it is evident from the reading of the aforesaid rule, can be filed at or before the next date fixed for hearing. In the Instant case, admittedly the application under Order IX, Rule 7. C.P.C. was filed by the petitioners on 6.8.1994. It was the date after the next date fixed under Order IX. Rule 6. C.P.C. 8. In view of these facts, the application filed by the petitioners under Order IX, Rule 7, C.P.C. was legally not maintainable. 5. Learned counsel for the revisionist, on the other hand, relied upon a decision of Hon'ble Allahabad High Court in Jagardeo v. Mohan Lal, 2005 (4) AWC 3319 , wherein it was observed as under: “5. Learned counsel for contesting respondent no. 1 has cited an authority of this Court in Prahlad Singh v. Niyaz, 2000 AWC 1721 to contend that application under Order IX Rule 7 C.P.C. can be filed only on the next date, which is fixed on the date when order directing the suit to proceed ex-parte is passed. This authority has been referred to by the revisional court also. In the said authority of Prahlad Singh application under Order IX Rule 7 CPC was filed after conclusion of the evidence. It was filed on the date fixed for arguments. In the authority of Prahlad Singh it was also observed that similar application under Order IX Rule 7 CPC had earlier been rejected on merit hence subsequent application under the same provision was barred by Section 11 CPC. (res judicata). 6. The view that application under Order IX Rule 7 CPC can be filed only on the date fixed while directing the suit to proceed ex parte and not afterwards taken in the aforesaid authority of Prahlad Singh is neither in consonance with Order IX Rule 7 CPC which nowhere places such restriction nor with the judgments of the Supreme Court in Sangram Singh v. Election Tribunal, AIR 1955 SC 425 and Arjun Singh v. Mahendra Kumar, AIR 1964 SC 993 . The only restriction is that the application shall be filed before the conclusion of the hearing. The said view is directly in conflict with Division Bench authority of this Court in Bhagwat Prasad v. Muhammad Shibli, AIR 1922 All. The only restriction is that the application shall be filed before the conclusion of the hearing. The said view is directly in conflict with Division Bench authority of this Court in Bhagwat Prasad v. Muhammad Shibli, AIR 1922 All. 110, the relevant portion of which is quoted below: “Bhagwat Prasad did not appear and the Court recorded an order directing that the case should be heard against him exparte. The case however was not heard on that date, and the hearing was postponed to a subsequent date. On that date, Bhagwat Prasad appeared and asked for an adjournment to enable him to file his written statement and to put forward his defence, and to adduce his evidence. This application was refused, but the case was for some reason adjourned to another date. On that date Bhagwat Prasad again appeared and asked the Court to permit him to file his written statement; and he stated that his witnesses were present in Court and he was ready to adduce his evidence. The Court refused to listen to him and to receive his written statement on the ground that on the first date fixed for hearing he was not present and the Court had ordered proceedings to be held ex-parte against him.” This view of the Court of first instance was clearly erroneous and strangely enough it was accepted by the lower appellate court.” [Emphasis supplied] 6. The above decision in Jagardeo's case (supra) finds support from yet another decision of Allahabad High Court in Kailash Nath v. Rajiv Ram, 2004 (4) AWC 3064 , para 10 of which is reproduced hereinbelow for convenience: “10. From the aforesaid, it is clear that on the date fixed, if the defendant does not appear, the Court may proceed in his absence, but it does not stop the defendant from not appearing subsequently. If the defendant appears subsequently after passing of the ex parte order and shows sufficient cause for his previous non-appearance and the Court can hear the defendant and permit him to appear.” [Emphasis supplied] 7. Now, it is worthwhile to reproduce Order 9 Rule 7 CPC hereinbelow: “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. Now, it is worthwhile to reproduce Order 9 Rule 7 CPC hereinbelow: “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 appeared on the day fixed for his appearance.” [Emphasis supplied] 8. The aforesaid decisions find further support from yet another judgment of Hon'ble Allahabad High Court in Aneja Hire Purchase (P) Ltd., Automobiles Finance v. Addl. District Judge, Court No. 7, Bareilly, 2010 (6) AWC 5624 , wherein it was observed: “8. From the perusal of record and the impugned judgment, it is clear that the matter remained pending for exparte hearing but the plaintiff-petitioner took no interest in arguing the matter. It is very well settled that the application under Order IX Rule 7 C.P.C. Can be moved at any stage till such time the arguments have not been heard. Reference may be made to the decision of Hon'ble Apex Court in the case of Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 . In the case in hand, the defendant-respondent moved an application before hearing could even start as such it cannot be said that the application was not maintainable. Further, the case set up by the defendant-respondent in the recall application was that he was not informed by the counsel about the development of his case and it was not possible for him to attend the proceedings on every date as he was living in Pilibhit. It is well settled that a litigant is not liable to be penalized for the mistake committed by his counsel. 9. Order IX Rule 7 C.P.C. only requires the defendant to assign good cause for his previous non-appearance. In the present case, the defendant-respondent did show good cause for his previous non-appearance that his counsel did not inform him about the proceedings.” [Emphasis supplied] 9. This Court is in complete agreement with the decisions of Hon'ble Allahabad High Court in Jagardeo's case (supra), Kailash Nath's case (supra) and Aneja's case (supra). In the present case, the defendant-respondent did show good cause for his previous non-appearance that his counsel did not inform him about the proceedings.” [Emphasis supplied] 9. This Court is in complete agreement with the decisions of Hon'ble Allahabad High Court in Jagardeo's case (supra), Kailash Nath's case (supra) and Aneja's case (supra). The provisions of Order 9 Rule 7 IPC cannot be given narrow construction to say that the defendant can move an application under Order 9 Rule 7 CPC only on the next date of hearing and not beyond that. Such an application can be moved at any stage till such time the arguments have not been heard and judgment has not been reserved or ex-parte judgment has not been delivered, for, in that case the only recourse will be to move an application under Order 9 Rule 13 CPC and not under Order 9 Rule 7 CPC. 10. It was, therefore, wrong on the part of the lower court to have concluded that the application filed by the revisionist under Order 9 Rule 7 CPC was not maintainable in the given facts and circumstances of the case. 11. In view of above, the civil revision is allowed by holding that the application under Order 9 Rule 7 CPC is maintainable. That part of impugned order, whereby it was held that the application under Order 9 Rule 7 CPC is not maintainable, is set aside. The matter is remitted back to the court below to consider the application of the defendant under Order 9 Rule 7 CPC on merits and if the defendant is able to assign good cause for his previous non-appearance, the said application must be allowed. The court below shall do so independently without being influenced by its observations made in the impugned order.