Point of Law: Exparte order - Interlocutory application - To reopen the case and record further evidence after the matter is reserved for pronouncement of judgment is not permissible.

ORDER :

Instant petition filed under Article 227 of the Constitution of India, lays challenge to order dated 12.5.2022, passed by the learned Civil Judge, Court No.3, Mandi, District Mandi, HP, in CMA No. 9-IV/2021, whereby an application under Order 9, Rule 7 CPC, having been filed by the petitioner-defendant, praying therein to set-aside the ex-parte order dated 9.11.2020, came to be dismissed.

2. Precisely, the facts of the case as emerge from the record are that respondent-plaintiff filed Civil Suit No. 258/2020 for declaration and injunction to the effect that the sale deed No. 1035/2019 dated 23.10.2019 is null and void and as such, petitioner be restrained from interfering in the suit land. Suit was listed before the court below on various dates. Though pursuant to notice issued to the petitioner, learned counsel for the petitioner-defendant had put in appearance in the court on one date i.e. 9.10.2020, but thereafter neither counsel nor petitioner-defendant chose to remain present in the court and as such, petitioner-defendant came to be proceeded ex-parte vide order dated 9.11.2020. After conclusion of final arguments, before pronouncement of final judgment, petitioner-defendant filed an application under Order 9 Rule 7 CPC, praying therein to set-aside the ex-parte order dated 9.11.2020. In the aforesaid application, petitioner- defendant averred that since courts were not working on regular basis on 9.11.2020, on account of COVID-19 and on account of resolution of Bar Association, neither petitioner-defendant nor his counsel could put in appearance in the court, impugned order dated 9.11.2020 proceeding defendant ex-parte is not sustainable. However, aforesaid prayer made by the petitioner-defendant came to be resisted by the respondent-plaintiff on the ground that petitioner defendant was fully aware of the listing of the case on 9.11.2020 and prior to this date, counsel appearing for the petitioner-defendant had been appearing the Court, but learned trial court dismissed the application on the ground that same is not maintainable on account of its being filed after conclusion of the hearing. In the aforesaid background, petitioner-defendant has approached this Court in the instant proceedings praying therein to set-aside the aforesaid order.

3. Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned in the judgment impugned in the instant proceedings, this Court finds that after 9.10.2020, none put in appearance on behalf of the petitioner-defendant and as such, he came to be proceeded ex-parte on 9.11.2020. Respondent plaintiff led evidence and thereafter final arguments were concluded on 4.1.2021. It is only after conclusion of the final arguments, petitioner-defendant filed an application under Order 9 Rule 7 CPC on 14.1.2021, claiming therein that courts were closed on account of COVID-19, however, aforesaid ground raised by the petitioner defendant came to be rejected being contrary to the record. When matter was listed on 9.10.2021, as is evident from the impugned order, it cannot be said that on that date, court was closed on account of COVID-19.

4. Leaving everything aside, after having perused provisions contained under Order 9 Rule 7 CPC, which are reproduced herein below, this Court finds that application for setting aside ex-parte order can only be entertained, if it is filed before the conclusion of the arguments. Any application filed after the conclusion of the arguments is not maintainable and in that eventuality, person being aggrieved on account of proceeded exparte order has a remedy to file appropriate proceedings under Order 9 Rule 7 CPC praying therein to set-aside ex-parte decree.

“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 exparte and the defendant, at or before such hearing, appears and assigns good cause fo