The court emphasized the necessity of following procedural mandates in ex-parte hearings to ensure the defendant's right to present their case is not compromised.

ORDER :

(BIRENDRA KUMAR, J.)

1. Heard the parties.

2. The background of this case is that the plaintiff had brought the suit for ejectment and arrears of rent against the appellant bearing Civil Suit No.8/2018. On 06.11.2020, the Court adjourned the matter, by way of last chance to the defendant (appellant herein), for 25.11.2020. On 25.11.2020, the counsel for the defendant (appellant) informed the Court that he has no instruction from the client. On the same day, the trial judge passed the impugned judgment and decree ex-prate. The said judgment was initially challenged in a misc. appeal before the District Judge. The Misc. Appeal was dismissed. Thereafter, Civil First Appeal No.9/2020 was preferred before the District Judge and that Civil First Appeal was also dismissed by judgment and decree dated 23.11.2023.

3. Contention of learned counsel for the appellant is that the learned trial Judge as well as First Appellate Court did not consider that on the date the impugned judgment was passed by the trial Judge, the Covid was at its peak. Moreover, the trial judge did not follow the procedure prescribed under Order IX CPC. The trial Judge should have fixed the case first for ex-parte hearing when no one was appearing for the defendant. If the case would have been fixed for ex-parte hearing, the defendant could have got an opportunity under Rule 7 to appear and show good cause for non appearance on the previous occasions and the Court could have passed appropriate order.

4. In the case on hand, the trial judge has abruptly passed the ex-parte decree without posting the case for ex-parte hearing. Order IX Rule 6 CPC provides that where the plaintiff appears and the defendant does not appear when the suit is called for hearing, then, if it is proved that summons was duly served, the Court may make an order that the suit be heard ex-parte. In the case on hand, the defendant had already appeared in the suit, therefore, the Court should have posted the matter first for ex-parte hearing only then the matter could have been heard ex-parte. Moreover, on the date of ex-parte hearing, the defendant had opportunity to appear and show good cause for non appearance under Order IX Rule 7 CPC.

5. Learned counsel for the respondent contends that several opportunities were allowed to the appellant, which would be evident from the past order-sheets but the appellant did not pay heed to the direction of the Court. Hence, the Court had no option but to pass ex-parte decree.

6. As discussed above, the trial judge had not followed the mandate of law while proceeding with the matter ex-parte. The ex-parte judgment was passed without fixing a date for ex-parte hearing, as such, taking away the rights of the defendant/appellant to show reasons for non appearance as permitted under Order IX Rule 7 CPC.

7. Consequently, the impugned judgments are not sustainable in law. Hence, judgment and decree of both the Courts below stands hereby set aside and the matter is remitted back to the trial judge to pass judgment and decree according to law at the earliest.

8. This order has been passed in presence of the parties. The parties shall appear before the trial Judge on 4.3.2025.

9. The Registry shall immediately transmit the records to the Courts below along with a copy of the order of this Court.

10. Accordingly, the instant civil second appeal stands disposed of.