Honble JAIN, J.–Admit. Mr. Mandhana appears for contesting respondent No.1. The service of respondent No.2 is dispensed with.

(2). Heard learned counsel for the parties.

(3). This writ petition on behalf of defendants is directed against the impugned order dated 19.2.2007 passed by Additional Civil Judge (Sr. Division) No.1, Beawar, District Ajmer, whereby their application for setting-aside the ex-parte order dated 11.9.2006 has been rejected.

(4). Briefly stated the facts of the case are that plaintiff- respondent no.1 instituted a suit for eviction against defendant- petitioners on different grounds. The suit was contested by defendants by filing written statement. The issues were framed in the case. The plaintiffs evidence was concluded on 6.7.2006 and thereafter the case was fixed for defendants evidence. The affidavits of DW-1 Sunil Kumar and DW-2 Radhey Shyam were filed. The case was fixed on 11.9.2006. On that day, neither the defendants nor their counsel was present, therefore, the trial court passed an ex-parte order against the defendants and fixed the case for final arguments on 25.9.2006. The trial court heard the arguments finally on 25.9.2006 and fixed the case for judgment on 5.10.2006. The defendants filed an application for setting-aside the ex-parte order in the trial court on 28.9.2006. The trial court rejected the application for setting aside the ex-parte order vide its order dated 19.2.2007.

(5). Learned counsel for the petitioners contended that ex-parte order was passed by the trial court on 11.9.2006 as defendants advocate could not make himself present due to his illness. His absence on that day was not deliberate, but bonafide one for the reason mentioned above. The application for setting-aside the ex- parte order was filed on 28.9.2006 itself, therefore, there was no much delay in filing the application, therefore, it could have been allowed. He further contended that although the provision of law was not mentioned in the application for setting-aside the exparte order but in-fact it was filed under Order 9 Rule 7 readwith Section 151 CPC. The trial court rejected the application on the ground that it was filed after conclusion of the arguments and fixing the case for judgment, therefore, the same was not maintainable, but the application could be allowed by exercising the powers under Section 151 CPC. In support of his submissions, he relied upon Radhey Shyam vs. State of Rajasthan {1987 (II) RLR page 399}, Sanjay Saxena vs. Smt. Rohini Kutty 1999 DNJ (Raj.) 322. He also referred Shipping Corporation of India Ltd. vs. Machado Brothers and Others {AIR 2004 SC 2093} = (RLW 2004(2) SC 210) and contended that unless there is specific prohibition under the provisions of the Code, the powers under Section 151 CPC can be exercised. He also contended that while rejecting the application of the petitioner on 19.2.2007, the trial court fixed the case for final arguments again on 22.3.2007, therefore, the trial court itself fixed the case for final arguments and in these circumstances, the application should not have been dismissed on the ground that final arguments in the case have been concluded and case has been fixed for pronouncement of judgment. He further contended that in the changed circumstances where the case has been fixed for final arguments again by the trial court itself, the application for setting-aside the ex-parte order should be allowed and ex-parte order may be set-aside.

(6). Learned counsel for the respondents submitted that the order passed by the trial court is absolutely legal and justified in the eye of law and the same is based on the judgment of the Honble Supreme Court in Arjun Singh vs. Mohindra Kumar {AIR 1964 Supreme Court 993}, wherein their lordships held that after conclusion of final arguments and fixing the case for judgment, the application under Order 9 Rule 7 CPC was not maintainable. The Apex Court also held that the inherent powers under Section 151 CPC in such circumst

Click Here to Read the rest of this document