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2017 DIGILAW 308 (ORI)

Rohit Bahadur Singh v. Raghunath Mishra

2017-03-21

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. This petition challenges the order dated 20.10.2014 passed by the learned Civil Judge (Jr.Division), Rairakhol in C.S. No. 4/2004/33/2011, whereby and whereunder the learned trial court rejected the application of defendant no.2 under Order 9 Rule 7 C.P.C. to set aside the ex parte order dated 8.1.2007. 2. Opposite party no.1 as plaintiff instituted the suit for declaration of right, title, interest and permanent injunction impleading the petitioner and opposite party no.2 as defendants. The petitioner was defendant no.2 in the suit. He was set ex parte. When the suit was posted for judgment, at this juncture, he filed an application under Order 9 Rule 7 C.P.C. praying inter alia to set aside the ex parte order dated 8.1.2007. The plaintiff filed objection to the same. The learned trial court rejected the same on the ground that no good cause has been assigned by defendant no.2. Held so, the learned trial court dismissed the petition. 3. Heard Mr. A. Mohanty, learned Advocate for the petitioner and Mr. S. Udgata, learned Advocate for opposite party no.1. 4. The question does arise as to whether application under Order 9, Rule 7 C.P.C. is maintainable after closure of the evidence when the suit is posted for judgment ? 5. The subject matter of dispute is no more res integra. In the case of Mamita Thati Vrs. Nepura Pradhan, AIR 2014 ORISSA 79, the Division Bench of this Court in paragraph-12 of the said report held as follows:- “12. In the case of Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993 , the Hon’ble Supreme Court held thus:- “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 O. XX R. 1, there is clearly no adjournment of “the hearing” of the suit, for, there is nothing more to be heard. 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 O. XX R. 1, there is clearly no adjournment of “the hearing” of the suit, for, there is nothing more to be heard. xx xx xx 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 IX applicable.” In view of the above, we hold that application under Order 9, Rule 7, C.P.C. filed by the appellant before the court below is misconceived.” 6. In view of the authoritative pronouncement of this Court in the case of Mamita Thati (supra), the learned trial court is justified in rejecting the application. The petition is dismissed. No Costs.