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2016 DIGILAW 1168 (MP)

Jaitun Bee v. Mohd. Aamin

2016-12-19

PRAKASH SHRIVASTAVA

body2016
ORDER : PRAKASH SHRIVASAVA, J. 1. By this writ petition under Article 227 of the Constitution of India, the defendant has approached this Court aggrieved with the order of the trial Court dated 8.12.2016, by which the petitioner's application under Order 9, Rule 7 read with Section 151 of the CPC has been rejected as not maintainable. 2. Learned counsel appearing for the petitioner submits that the trial Court has committed an error in holding that the application under Order 9, Rule 7 of the CPC was not maintainable at the final stage, whereas learned counsel for the respondent has supported the impugned order. 3. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the matter was repeatedly fixed by the trial Court for examination of the defendant's witnesses but the said opportunity was not availed by the petitioner, therefore, on 18.11.2016 when neither the petitioner nor his counsel had appeared, the trial Court had proceeded ex-parte and heard the final arguments and reserved the case for judgment. Thereafter on 28.11.2016 the petitioner had filed an application under Order 9, Rule 7 read with Section 151 of the CPC for setting aside the ex-parte proceedings which has been rejected by the trial Court on the ground that since the case was already reserved for judgment, therefore, the application was not maintainable. 4. Order 9, Rule 7 of the CPC provides that :- "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. A bare reading of the aforesaid provision makes it clear that the provision is attracted in a case where the court has adjourned the hearing of the suit ex-parte and the application is filed before such hearing, therefore, in a case where the final arguments in the suit are heard and the matter is reserved for judgment, the aforesaid provision will not be attracted because in such an eventuality the case is not adjourned for hearing. This aspect was considered by the Supreme Court in the matter of Arjun Singh v. Mohindra Kumar and others reported in AIR 1964 SC 993 wherein it has been held as under :- "17. So far as the case before us is concerned the order under appeal cannot be sustained even on the basis that the finding recorded in disposing of an application under O. IX, R. 7 would operate as res judicata when the same question of fact is raised in a subsequent application to set aside an ex-parte decree under O. IX, R. 13. This is because it is not disputed that in order to operate as res judicata, the court dealing with the first matter must have had jurisdiction and competency to enertain and decide the issue. Adverting to the facts of the present appeal, this would primarily turn upon the proper construction of the terms of O. IX, R.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 a suit has been completed and the Court being competent to pronounce judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under O. XX, R. 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 fudge 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 & 7 he would permit him to do that. If, therefore, the hearing was completed and the suit was not "adjourned for hearing", O. IX, R.7 could have no application and the matter would stand at the stage of O. IX, R.6 to be followed up by the passing of an ex-parte decree making R. 13 the only provision in Order 9 applicable. If, therefore, the hearing was completed and the suit was not "adjourned for hearing", O. IX, R.7 could have no application and the matter would stand at the stage of O. IX, R.6 to be followed up by the passing of an ex-parte decree making R. 13 the only provision in Order 9 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 O. IX, R.7, or pass any order thereon on the merits. This in its turn would lead to the result that the application under O. IX, R. 13 was not only competent but had to be heard on the merits without reference to the findings contained in the previous order." 6. This issue was again examined by the Supreme Court in the matter of Bhanu Kumar Jain v. Archana Kumar and Another reported in (2005) 1 SCC 787 , wherein after considering the earlier judgments on the point, it has been held that :- "16. Order 9, Rule 7 of the Code postulates an application for allowing a defendant to be heard in answer to the suit when an order posting a suit for ex-parte hearing was passed, only in the event, the suit had not been heard; as in a case where hearing of the suit was complete and the court had adjourned a suit for pronouncing the judgment, an application under Order 9, Rule 7 would not be maintainable. (See Arjun Singh v. Mohindra Kumar). The purpose and object of Order 9, Rule 7 of the Code has been explained by this Court in Vijay Kumar Madan v. R.N. Gupta Technical Education Society and Ramesh Chand Ardawatiya v. Anil Panjwani." 7. Keeping in view the aforesaid position in law, the trial Court has not committed any error in holding that the application under Order 9, Rule 7 of the CPC was not maintainable because the final hearing in the suit had taken place and the case was reserved for judgment. 8. The writ petition is devoid of any merit, which is accordingly dismissed.