Order 9 Rule 7 of the Civil Procedure Code does not apply after the case has been reserved for judgment, as the case has not been adjourned for hearing.

Headnote:
CIVIL PROCEDURE CODE - ORDER 9 RULE 7 - APPLICABILITY - EX-PARTE ORDER - SETTING ASIDE - JURISDICTION - INHERENT POWERS OF THE COURT - SECTION 151 - EXERCISE OF - CONDITIONS.
Fact of the Case:

The petitioner filed a suit against the State of Rajasthan and others for a declaration that the dismissal order was bad in law. The State and its officers were served with summons and an ex-parte order was passed on 24th January 1983. The State applied to set aside the ex-parte order, which was accepted on 20th July 1983. The State was granted 3 months to file a written statement, but failed to do so despite multiple adjournments. On 14th March 1984, the court directed that the proceedings should continue without the filing of a written statement and evidence was recorded. The State again failed to appear on the date fixed for final arguments. On 5th December 1984, the State filed an application to set aside the ex-parte order on the ground that the officer was transferred. The court below accepted the application and directed that the earlier amount of costs paid by the State be refunded.
Finding of the Court:

The court held that the order setting aside the ex-parte order under Order 9 Rule 7 of the Civil Procedure Code was without jurisdiction, as the case had been reserved for judgment and was not adjourned for hearing. The court further held that the State and its officers were grossly negligent in not filing the written statement and attending the court proceedings, and that disciplinary action should be taken against them. However, in the interest of justice, the court set aside the order dated 27th July 1985, passed by the court below under Order 9 Rule 7 Civil Procedure Code, and exercised its powers under Section 151 of the Civil Procedure Code to set aside the ex-parte decree on certain terms and conditions.
Issues: 1. Whether the court had jurisdiction to set aside the ex-parte order under Order 9 Rule 7 of the Civil Procedure Code after the case had been reserved for judgment? 2. Whether the State and its officers were grossly negligent in not filing the written statement and attending the court proceedings? 3. Whether disciplinary action should be taken against the State and its officers for their negligence?
Ratio Decidendi: 1. Order 9 Rule 7 of the Civil Procedure Code comes into play only when the court has adjourned the hearing of the suit. After the case is reserved for judgment, Order 9 Rule 7 does not apply, as the case has not been adjourned for hearing. 2. The State and its officers were grossly negligent in not filing the written statement and attending the court proceedings, as evidenced by the multiple adjournments granted to them and their failure to appear on the date fixed for final arguments. 3. Disciplinary action should be taken against the State and its officers for their negligence, as it is a case of gross negligence that has resulted in a waste of public funds.
Final Decision: The court set aside the order dated 27th July 1985, passed by the court below under Order 9 Rule 7 Civil Procedure Code, and exercised its powers under Section 151 of the Civil Procedure Code to set aside the ex-parte decree on the following terms and conditions: 1. The Chief Secretary, Government of Rajasthan, is requested to initiate disciplinary proceedings against the defaulting officer or officers and recover the amount paid as costs from them. 2. The Chief Secretary is requested to complete the disciplinary proceedings within 6 months and ensure that the amount is recovered from the officer or officers concerned. 3. The State will pay Rs. 5,000/- as costs to the petitioner within 3 months, failing which the State will have no right to be heard and the court will pronounce the judgment on the basis of the available record.

JUDGMENT

1. - This revision petition is directed against the order of the learned Addl. Civil Judge, No. 5, Jaipur City, J.,ipur, dated 27th July, 1985, in civil suit No. x22/1983.

2. Suit was instituted by the plaintiff against the State of Rajasthan and ors. for declaration that the dismissal order is bad in law. Summons were issued to the respondents and its officers. On 24th January, 1953, ex-parte order was passed. Application for setting-aside the ex-parte order was moved by the State and it was accepted on 20th July, 19'3. Ex-pane order was set-aside and 3 months time was granted to the State to file the written statement. On 19th October, 1983, written statement was not filed, hence further time was granted to the State. On 19th November 1983. also the written statement was n-)t filed and further time was allowed. On 18th January, 1984, again the written statement was not filed and the court allowed time on the condition that Rs. 50/- will be paid to the petitioner as cost.

3. On 4th February, 1984, written statement again was not filed and further time was allowed on the condition that the State will pay Rs. 75/- as cost. On 25.2.1984, written statement was not filed and again the case was adjourned on the condition that Rs. 100/- will be paid by the State as cost. it will not be out of place here to mention that the cost awarded on 18.1,1984, 4.2.1984 and 25.2.1984, have not been paid. On 14th March, 1984, written statement was again not filed and the court directed that the proceedings should continue without filing of the written statement. Directions were given that the evidence will be recorded. On 5.5.1984, evidence was recorded. None appeared on behalf of State of Rajasthan and its officers. The case was fixed on 16.5.1984. for final arguments On 16.5.1984, the Presiding Officer, was transferred as such the arguments could not be heard. The case was adjourned on 18th August, 1984, 15th September, 1984 and 20.10.1984. On 3.11.1984. arguments were heard. The judgment was to be delivered on 5,11.1984, but it could not be delivered and the case was adjourned for 17.11.1984. It could not be delivered on 17th Nov. 1984. On 5.12.1984. an application was submitted for setting aside the ex-parte order on the ground that the officer was transfer. The court below vide order 27th July 1985. accepted the application and directed that earlier amount of Rs. 12'/-1150/-= Rs. 275/- should be paid by the State of Rajasthan. It will not be out of place here to mention that most of the parties served in the year 1981 and all are the officers of the State.

4. Being aggrieved with the order passed by the court below setting-aside the ex-parte order, this revision petition has been filed by the petitioner challenging the order on number of grounds.

5. Mr. Soni, learned counsel for the petitioner submitted that State cannot be placed on a better footing than ordinary litigant. It was also submitted that undue concession extended leads to discrimination resulting in unequal treatment to his client. It was also submitted by Mr. Soni, that if undue discrimination is made between one party and the other party then the question of jurisdiction is involved in it.

6. Mr. M. Refique, learned counsel for the State of Rajasthan and ors. supported the order passed by the court below and submitted that the court was justified in setting-aside the ex-parte order. He has also submitted that no question of jurisdiction is involved in it.

7. Chapter IV-A has been inserted in the Constitution of India. Article 51-A, provides that it shall be the duty of every citizen of India, to abide by the duties cast on him. It is the duty of every citizen including the officers of the State to safeguard the property and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. Officers of the State are the citizens of the country they are equally bound to perform their duties cast on them under the law. Omission or commissio

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1987 Supreme(Raj) 753

RAJASTHAN HIGH COURT AT JAIPUR BENCHD.L.Mehta, J.Radhey Shyam - AppellantVersusState of Rajasthan & ors. - RespondentS.B. Civil Revision Petition No. 693 of 1985.Decided On : 26-08-1987

Order 9 Rule 7 of the Civil Procedure Code does not apply after the case has been reserved for judgment, as the case has not been adjourned for hearing.

RAJASTHAN HIGH COURT AT JAIPUR BENCH
D.L.Mehta, J.
Radhey Shyam - Appellant
Versus
State of Rajasthan & ors. - Respondent
S.B. Civil Revision Petition No. 693 of 1985.
Decided On : 26-08-1987