ORDER :

1. Whether an application under Order IX Rule 7 of CPC could be filed after the suit is posted for judgment is the short question that arises for consideration in this petition filed under Articles 226 and 227 of the Constitution of India.

2. The outline facts leading to the petition are as follows:

Respondent No. 1 herein filed a suit for declaration and permanent injunction against the petitioner and respondent No. 2 herein in O.S. No. 53/2016 before the Principal Senior Civil Judge, Raichur. This plaint was returned to respondent No. 1/plaintiff to present the same before the jurisdictional Court on 16.03.2016. Respondent No. 1 appears to have taken return of the plaint on the same day and presented the same before the Court of the Principal Civil Judge and JMFC on the same day i.e. on 16.03.2016. The records disclose that it was made over to the II Additional Civil Judge for disposal on 17.03.2016, but the order sheet in O.S. No. 75/2016 manifests that on 16.03.2016 the learned Civil Judge issued summons to defendant Nos.1 and 2. It is recorded therein that the summons were served on the petitioner/defendant No. 1, but he failed to appear before the Court and was placed ex-parte and the case was posted for further hearing from time to time and finally posted for judgment on 18.06.2018. At that stage, the petitioner herein (defendant No. 1) filed an application under Order IX Rule 7 read with Section 151 of CPC which was numbered as I.A. No. IX, seeking to recall the ex-parte order by permitting him to file vakalathnama and to proceed with the matter. In the affidavit filed in support of the application the petitioner affirmed that the suit summons were not served on him and therefore he was unable to appear before the Court and only recently he came to know about the presentation of the above suit before the Court.

3. Respondent No. 1/plaintiff opposed the petition inter-alia contending that the statement made in the affidavit that the summons were not served on him was false. According to the plaintiff summons were duly served on defendant No. 1/petitioner as noted in the order sheet. Further he contended that the petitioner participated in the earlier suit namely, O.S. No. 53/2015 and the learned senior Civil Judge had directed both the parties to the suit to appear before the jurisdictional Court on 16.03.2016. The act of the petitioner in keeping himself away from the Court until the conclusion of the trial and seeking intervention in the matter only when the matter was set down for judgment, is legally impermissible and thus sought to dismiss the petition.

4. In the course of the arguments both the learned counsel appearing for the parties appear to have relied on certain citations in support of their respective contentions before the trial Court, but there is no reference to these citations in the impugned order, yet, the trial Court judge, reiterating the principle that once the matter is posted for judgment nothing is required to be done by the Court except to pronounce the judgment and no application can be filed after the final argument is heard and the matter is posted for judgment, dismissed the application filed by the petitioner under Order IX Rule 7 read with Section 151 of CPC.

5. Learned counsel appearing for petitioner, placing reliance on the decision of the Hon’ble Supreme Court in the case of K.K. Velusamy vs. Palani Samy, (2011) 11 SCC 275 would submit that there is no inflexible rule that once the arguments are commenced that no application could be filed even to set aside the ex-parte arguments. The Court is required to act in a manner to achieve the ends of justice. If there is abuse of process of the Court or interest of justice is required the Court to do something or to take note of something, discretion to do those things do not disappear merely because the arguments are heard either fully or partly. In exceptional and extraordinary circumstances to meet the ends of justice, the Court is empo