IMPORTANT POINT
Court can set aside ex-parte proceedings u/o 9 Rule 7 Civil Procedure Code on such terms which are not onerous to defendant and impose costs to reasonably compensate plaintiff. The impugned order of the High Court deserves to be maintained but subject to certain modifications pointed out in this judgment.

Headnote:Civil Procedure Code 1908-Order 9 Rule 7-Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance-Suit for recovery of rent and ejectment-On 2-5-98 no appearance by defendant/respondent-Court directed to proceed ex-parte-On 29-5-98 sufficient cause shown to be an accident-On 9.1.99 Trial Court set aside ex-parte order of 2.5.98 on the condition that the defendant will deposit monthly lease amount and file written statement by 16.2.99-High Court in appeal on 14.10.1999 set aside the condition imposed by Trial Court on the defendants while setting aside ex-parte order as it was on onerous condition but directed the Trial Court to decide suit latest by 31-3-2000-Plaintiffs filed appeal to Supreme Court-Leave granted an 28.2.2000 but direction of High Court to Trial Court of decision by 31.3.2000 not stayed-Trial Court to decided against defendant-Possession taken by plaintiff-Appellant on 1.11.2000-Defendant not praying for restitution of possession but on recovery of rent-Whether the condition imposed by the Trial Court putting the defendant on terms were too onerous as could not be imposed under Order 9 Rule 7 ref=act:10444>CPC? (Yes as to rent but No as to filing of written statement)-Whether High Court was right in setting aside those conditions while sustaining the order of trial Court setting aside the ex-parte proceedings? (Yes, subject to certain modifications)-Appeal disposed of accordingly.
       Held : Having heard the learned counsel for the parties, we are of the opinion that the impugned order of the High Court deserves to be maintained but subject to certain modifications. Under Order 9 Rule 7 of the CPC the Court does have jurisdiction, while setting aside the ex-parte order to impose costs and also to put the defendants - applicants on terms. (Para 6)
       Costs should be so assessed as would reasonably compensate the plaintiff for the loss of time and inconvenience caused by relegating back the proceedings to an earlier stage. The terms which the Court may direct may take care of the time or mode of proceedings required to be taken pursuant to the order under Rule 7. (Para 8)
       Held thereafter : The order of the High Court to the extent of setting aside the ex-parte proceedings and directing the expeditious trial of the suit has to be sustained as it serves the ends of justice. But in view of the subsequent events brought to our notice and the statement made by the learned counsel for the defendants - respondents during the course of hearing, the following directions are made:-
        1. The ex-parte order dated 2.5.98, and the judgment and decree of the trial court based on the ex-parte order dated 2.5.98 are set aside. The interim order of this Court dated 28.2.2000 shall also stand vacated. The suit shall stand restored on the file of the trial court.
        2. As the plaintiffs have secured the possession of suit premises and the defendants - respondents have given up their right of restitution so far as the possession of the premises are concerned, the suit filed by the plaintiff-appellants shall now be treated as a money claim for recovery of arrears as claimed in the plaint as also for recovery of arrears pending suit for the period expiring on 1.11.2000, the date on which the plaintiff - appellants have secured possession over the tenancy premises.
        3. Such of the witnesses as have already been cross examined by the defendant - respondents shall not be recalled for further cross examination, in view of that right having been given by the learned counsel for the defendant - respondents before this Court. Such of the plaintiffs witnesses as were not cross examined, shall be recalled for cross examination at the cost and expenses of the defendant - respondents.
        4. The parties shall have the liberty to lead such other evidence as they propose to do.
        5. The Trial Court may refuse to grant any avoidable adjournment at the trial which may have the effect of delaying the hearing of the suit. The suit shall be expeditiously heard and decided. The learned counsel for the defendant - respondents has assured that the defendants shall co-operate therein.
        6. To avail the benefit of the orders passed by the High Court and this order the defendants shall pay cost of Rs. 50,000/- to the plaintiff-appellants within four weeks as a condition precedent. (Para 8)
       But held : During the execution of decree an amount of Rs. 20,00,000/- (Rupees twenty lakhs only) is said to have been attached by the executing court. As the ex-parte decree has been set aside and the suit stand re-opened, the plaintiff- appellants shall be at liberty to move an application for attachment before judgment of such amount and/or such other interim relief as may be available to them before the trial court. However, we express no opinion on this. The appeal stands disposed of in the terms abovesaid. (Paras 9 & 10)

ORDER

Certain premises situated in the township of Gurgaon, Haryana were held by the respondents on tenancy from the appellants under the Deed of Lease dated 1.4.1996. The rent of the tenancy premises, payable with effect from 1.4.1996, was Rs.63,087.50 per month, in addition to maintenance charges of Rs. 40,000/- per month. On 27.3.1998, the appellants filed a suit for recovery of rent and ejectment of the respondents alleging the respondents to be in arrears with effect from 1.5.1996. On 2.5.1998 the defendants/respondents and their counsel failed to appear in the trial court and, therefore, the trial court directed the suit to proceed ex-parte against the defendants. On 29.5.1998 the defendants moved an application under Order 9 Rule 7 of the CPC praying for setting aside of the ex-parte order on the ground that their counsel was prevented from appearing in the court on account of having met with an accident. On 9.9.1999 the trial court allowed the defendants application recording the finding that the counsel for the defendants had good and sufficient cause for previous non-appearance in the court and that the non-appearance of defendants and their counsel on 2.5.1998 was not intentional but due to unavoidable circumstances. However, purporting to exercise the power conferred by Order 9 Rule 7 of the CPC to put the defendants, on terms, the trial court directed as under:-

"It is pertinent to mention here that since defendants are enjoying the property, it will be reasonable to direct them to deposit monthly lease amount in the court at the time of filing written statement. If ultimately it is found that case of the plaintiffs is false and that of the defendants is true, defendants will be entitled to claim back that amount from the plaintiffs. On this condition I set aside the ex parte order dated 2.5.98 on the condition that the defendants will deposit monthly lease amount on 16.2.99 for filing the written statement and for payment".

2. The defendants feeling aggrieved by the order of the trial court to the extent to which it placed the defendants on terms in the manner reflected in the order of the trial court extracted and reproduced hereinabove, preferred an appeal in its High Court. In its order dated 14.10.1999, which is impugned herein, the High Court formed an opinion that the condition imposed by the trial court on the defendants while setting aside the ex-parte order was too onerous and in view of such opinion formed by the High Court, the condition imposed by the trial court was directed to be set aside. At the same time taking care of the hardship that was likely to result to the plaintiffs (respondents in the High Court) , the High Court directed the trial court to proceed to dispose of the suit as early as possible and latest by 31.3.2000.

3 . The plaintiffs filed the present petition seeking special leave to appeal. On 28.2 .2000, while allowing the leave to the appellants, it was directed that the impugned order of the High Court dated 14th October, 1999 should remain stayed. However, the Court added that the stay will not in any way affect the direction of the High Court regarding the disposal of the suit by 31st March, 2000. The result of the interim order was that the order of the trial court dated 9.1.99 putting the defendants on terms came into operation and as the defendants failed to comply with the condition imposed by the trial court, the trial court in terms of the interim order passed by this Court decided the suit on 31.3.2000 passing a decree for recovery of rent in arrears as also for recovery of possession as prayed for by the plaintiffs. However, it appears that prior to 28.2.2000 the date of the passing of the interim order by this Court, and armed with the order of the High Court, the defendants had filed their written statement. The trial had proceeded and on behalf of the plaintiffs four witnesses (P.W. 5 to P.W. 8) were examined which were also cross examined on behalf of the defendants, by

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