Research › Search › Judgment

Uttarakhand High Court · body

2023 DIGILAW 460 (UTT)

Pavan Kumar Nath v. Rashmi Mukhi

2023-08-09

VIVEK BHARTI SHARMA

body2023
JUDGMENT : This revision has been filed against the order dated 26.07.2021 passed by Civil Judge (Senior Division), Nainital, whereby the application moved by the revisionist under Order 9 Rule 7 read with Section 151 of Civil Procedure Code, has been dismissed. 2. In brief, facts of the case are that the respondent/plaintiff instituted a suit being Civil Suit No.24 of 2014 for recovery of money against the revisionists/defendant in the court of Civil Judge (S.D.), Nainital. The revisionists/defendants put in appearance in the trial court through his counsel and moved application under Order 7 Rule 11 of CPC. On 27.10.2017, despite repeated calls as none appeared for the revisionists/defendant, the trial court, vide order dated 27.10.2017 passed the order for proceeding ex parte against the revisionists/defendants. Being aggrieved, the revisionists/defendants moved an application under Order 9 Rule 7 of r/w 151 C.P.C. for setting the ex parte decree and to give them opportunity of being heard. Learned Civil Judge (S.D.), Nainital did not find favour to the revisionists/defendants and dismissed the application vide order dated 26.07.2021. Hence, this revision. 3. Being aggrieved, the revisionists/defendants moved an application under Order 9 Rule 7 of r/w 151 C.P.C. for setting the ex parte decree and to give them opportunity of being heard. Learned Civil Judge (S.D.), Nainital did not find favour to the revisionists/defendants and dismissed the application vide order dated 26.07.2021. Hence, this revision. 3. Learned counsel for the revisionists/defendants would submit that the court below has erred in rejecting the application of the revisionist/defendants moved under Order 9 Rule 7 r/w 151 C.P.C. on a technical ground ignoring the settled principle that as far as possible the lis should be decided on merits; that, good and sufficient cause was shown by the revisionists/defendants in the application for non appearance on the date fixed, however, the trial court without considering the same, dismissed the application in a very cursory manner; that, it was specifically stated in the application that it was the mistake of the counsel for the revisionists/defendants, who did not inform them about the ex parte order and when they did not get adequate and satisfactory reply then they got the file inspected and then only they came to know about the impugned order dated 27.10.2017 whereafter without any further delay they moved the application under Order 9 Rule 7 read with 151 of CPC; that, the court below did not take into consideration this material aspect that the revisionist/defendant had earlier filed the application under Order 7 Rule 11 C.P.C. which is pending disposal and that the revisionists/defendants were continuously pursuing their case; that, the trial of the suit is at initial stage and not affording opportunity of hearing to the revisionists/defendants would cause prejudice and irreparable loss to them and would also lead to multiplicity of litigation. 4. Per contra, learned counsel for the respondent/plaintiff vehemently opposed the application on the grounds that the revisionists/defendants have not shown any good cause in the application for non appearance and the trial court is justified in passing the order for proceeding case ex parte against them. 4. Per contra, learned counsel for the respondent/plaintiff vehemently opposed the application on the grounds that the revisionists/defendants have not shown any good cause in the application for non appearance and the trial court is justified in passing the order for proceeding case ex parte against them. He would further submit that it was not specifically stated in the application under Order 9 Rule 7 r/w 151 C.P.C. of the revisionists/defendants as to on which date they came to know about the impugned order and on what date they got the file inspected; that, revisionists/defendants filed the said application belatedly for which also they did not show any cause nor filed any application for condonation of delay along with the application under Order 9 Rule 7 r/w 151 C.P.C. 5. Heard learned counsel for the parties and perused the material available on file. 6. Perusal of the application moved under Order 9 Rule 7 C.P.C. would transpire that in the application it is nowhere stated by the revisionists/defendants as to on what date they came to know about the impugned order through inspection. Merely stating that the revisionist/defendants were in regular touch of their lawyer but their lawyer did not give any satisfactory reply whereafter they got the file inspected, is not sufficient. In the opinion of the Court, no good reason has been shown by the revisionists/defendants for non appearance on the date fixed. The revisionists/defendants have not acted diligently in pursuing their case. Therefore, the order passed by the trial court dismissing the application is justified and does not require any interference. 7. That apart, indisputably, the order for proceeding ex parte against the revisionists/defendants was passed on 27.10.2017 and the application under Order 9 Rule 7 r/w 151 C.P.C. was presented before the court below on 29.11.2019. As there is no date mentioned that on what date the revisionists/defendants came to know about the impugned order; therefore, the date of knowledge of the impugned order will be presumed to be the date of the order itself i.e. 27.10.2017. Thus, there is a delay of about two years in filing the application but no application under Section 5 of Limitation Act was filed by the revisionists/defendants along with the application Order 9 Rule 7 r/w 151 C.P.C. for condoning such delay. Thus, there is a delay of about two years in filing the application but no application under Section 5 of Limitation Act was filed by the revisionists/defendants along with the application Order 9 Rule 7 r/w 151 C.P.C. for condoning such delay. Learned counsel for the revisionists/defendants would fairly admit at Bar that no application for condoning the delay in filing the application under Order 9 Rule 7 read with 151 of CPC for setting aside the impugned order was filed. In view of the same, even otherwise also, in the absence of the application for condonation of delay, the application filed by the revisionists/defendants under Order 9 Rule 7 r/w 151 of CPC was not maintainable. Nonetheless, apart from that, the learned trial court has rightly observed in the impugned order that the revisionists/defendants have nowhere stated that on what date they came to know about the impugned order of the trial court for proceedings ex-parte against the revisionists/defendants. 8. For the reasons recorded above, the present civil revision is dismissed.