JUDGMENT - S.G. MAHAJAN, J.:---The order impugned in this Revision was passed by the learned 20th Joint Civil Judge, Junior Division, Nagpur in R.C.S. No. 1848 of 1988 on 7-11-1997 whereby he allowed the application for amendment moved by the plaintiff who is the respondent herein, which was subject to cost of Rs. 30/-.

2. The suit filed by the plaintiff/respondent is for mandatory and permanent injunction. The plaintiff has prayed therein that the defendant be ordered to remove the tin sheets placed in his wall as well as the almirah and other constructions made by the defendant against the wall. Further the permanent injunction restraining the defendant/revision petitioner from making any construction against the plaintiff's wall is also sought. The defendant/revision petitioner filed his written statement denying the allegations and prayed for dismissal of the suit. The issues were framed and the evidence led by the respective parties was also recorded. The hearing was completed and the case was closed for judgment.

3. At that stage, the plaintiff/respondent moved an application under Order 6, Rule 17 of the Code of Civil Procedure for the amendment of plaint. The amendment sought by the plaintiff was in regard to his ownership over the house and site in dispute. The learned trial Judge by the aforesaid order, which is under challenge in this revision, allowed the application for amendment as stated earlier.

4. Heard both the sides.

The learned Counsel for the revision petitioner submitted that when once the hearing of the suit was concluded and the case was closed for judgment, it was not open for the plaintiff/respondent to make an application for amendment and the trial Court ought not to have allowed the amendment application. In support of his contention, he cited the case of (Arjun Singh v. Mohindra Kumar and others)1, reported in A.I.R. 1964 S.C. 993. In this cited case, the entire hearing was completed and the case was adjourned for pronouncing the judgment. At that stage, an application under Order 9, Rule 7 of the Code of Civil Procedure came to be moved and the same was held not to be competent.

5. In my humble opinion, the ratio of the above said cited case is not applicable to the instant matter. The application that was moved in the said case was under Order 9, Rule 7 of the Code of Civil Procedure which was for setting aside the order proceeding ex parte. The provision of Order 9, Rule 7 of the Civil Procedure Code reads as under:---

“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.” (Emphasis supplied)

6. It was observed in the abovesaid cited case that, if the entirety of the “hearing” of the suit is completed and the Court being competent of pronounce the judgment then and there, adjourns the suit merely for pronouncing the judgment under Order 20, Rule 1, there is no adornment of “the hearing” of the suit, for, there is nothing more to be heard in the suit and in such a case Order 9, Rule 7 has no application and the matter would stand at the stage of Order 9, Rule 6 to be followed up by the passing of an ex parte decree making Rule 13 the only provision in Order 9 applicable.

7. So, the application under Order 9, Rule 7 was held not to be competent because nothing had remained to be heard and the case was fixed for pronouncing judgment. The peculiar wording “at or before such hearing” that appears in Order 9, Rule 7, makes it incumbent upon the defendant to apply for setting aside the order proceeding ex parte before the hearing is concluded and the case is posted for judgment.

8. The provision of Order 6, Rule 17 is on a different footing. It reads thus:

“The Court may at any stage of the proceedings allow either party

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