Badar Durrez Ahmed, ACJ. (Oral):--

1. The present appeal has been filed against the order dated 28.10.2013 passed by a learned Single Judge of this Court in I.A. No. 16257/2013 in CS (OS) No. 41/2008. The appellants herein were defendants before the learned Single Judge. They had filed the said IA No. 16257/2013 under Order IX Rule 7 CPC seeking the setting aside of the order dated 30.11.2012 passed earlier by the learned Single Judge whereby the said defendants were directed to be proceeded ex parte.

2. The learned Single Judge permitted the defendants to participate in the Suit from that stage onwards, but declined to set the clock back and consequently, did not permit the defendants to cross-examine PW-1 or to lead their evidence, as the matter had already been set for final arguments and part-arguments of the plaintiff had been advanced.

3. The defendants are aggrieved by the said order. The learned counsel for the respondent pointed out that in the previous hearing on 10.02.2014, the respondent had raised preliminary objections with respect to the maintainability of this appeal. He stated that the order dated 28.10.2013 is an order rejecting the appellants/defendants” application under Order IX Rule 7 CPC and the same has not been shown to be appealable under Order XLIII Rule 1 CPC. The learned counsel for the respondent placed reliance on the Supreme Court’s decision in the case of Arjun Singh v. Mohindra Kumar and other: AIR 1964 SC 993.

4. On the other hand the learned counsel for the appellants submitted that although the impugned order dated 28.10.2013 is not an appealable order listed under Order XLIII Rule 1 CPC, the appeal would, all the same, be maintainable under Section 10 of the Delhi High Court Act, 1966. He submitted that the impugned order dated 28.10.2013 would fall within the meaning of the word “judgement” as appearing in Section 10 of the Delhi High Court Act, 1966. For this proposition he placed reliance on the Supreme Court decision in the case of Shah Babulal Khimji v. Jayaben D. Kania and another: AIR 1981 SC 1786. In that decision, the Supreme Court was considering the Letters Patent of the Bombay High Court. The Supreme Court considered the meaning of the word “judgment” appearing in the said Letters Patent. The learned counsel for the appellants submitted that a Full Bench of this court in the case of Jaswinder Singh, Geetanjali Singh and another v. Mrigendra Pritam Vikramsingh: 196 (2013) DLT 1 (FB) held that Section 10 was analogous to the provisions of the Letters Patent which was analysed by the Supreme Court in Shah Babulal Khimji (supra) and that the expression “judgment” used in Section 10 of the Delhi High Court Act, 1966 would have the same meaning as the word “judgment” discussed in Shah Babulal Khimji (supra). Consequently, it was submitted that the present appeal was maintainable, inasmuch as, according to the learned counsel for the appellants the order dated 28.10.2013, whereby the appellants”/defendants” application under Order IX Rule 7 CPC was rejected to the extent that they were not permitted to re-open the proceedings from the date on which the court had directed that the said appellants/defendants be proceeded against ex-parte, was in the nature of an order which would qualify as a “judgment”.

5. Order IX Rule 7 CPC reads as under:-

“ORDER IX - APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE

Rule 7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.-- 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 nonappearance, 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.”

6. On a plain reading of the above provision it is apparent that after the court adjourns the hearing of the suit ex-parte, the defendan

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