An application under Order 9 Rule 7 C.P.C. is not maintainable when there is no hearing in the suit and the case is only fixed for orders or pronouncement of judgment.

I.S.Tiwana, J.

1. In this petition under Section 115 C.P.C., the following facts are not in dispute.

2. On a suit filed by the plaintiff-petitioner, the defendant respondent was served with a notice to put in appearance in Court on September 4, 1985ard it having failed to do that, was proceeded against ex-parte. The suit, however, was adjourned to 27th September, 1980 for evidence of the petitioner. The Court after recording the ex-parte evidence on 27tb September, 198.") and 5th November, )985, adjourned it for hearing the arguments on 9th November, 1985. Having heard the arguments on that date, the case was fixed for 28th November, 1985 for orders, Since the presiding officer remained on leave for a pretty long time, the suit was ultimately decreed on 5th September, 1986.

3. During the pendency of the above noted proceedings, the respondent filed an application under Order 9, Rule 7, C. P. C. on 13th March, 1986 for setting aside the ex parte proceedings taken against it inter alia pleading therein that the absence of the respondent m these proceedings was neither mala fide or intentional, nor deliberate but was on account of procedural wrangles which had to be gone through in the different sections of the Department for putting in proper representation on behalf of the State Government. The petitioner, while contesting the various assertions made on behalf of the respondent, raised the plea that not only ex-parte judgment and decree had by then been passed against the respondent but the very application under Order 9, Rule 7 was not maintainable as on the date it was filed, i.e., 13th March, 1986 or on any subsequent date no hearing in the suit was to take place and the case was only fixed for orders or pronouncement of the judgment The lower Court has disposed of the matter vide its impugned order in the following manner :-

"Since the defendant had moved the application on 15(13).3.1986 for setting aside the ex-parte proceedings, therefore, I hold that there is no need for the defendant to file the application, for setting aside the judgment and decree because the present application had been moved before passing the ex-parte judgment and decree. It is also settled principle that no one should (be) allowed to suffer due to the acts the Courts. Since the circumstances of this Court are such that it was due to the non-availability of the presiding offices1 of this Court that the present situation has arisen. Since the present application has been filed by the defendant under Order 9, Rule 7, C.P.C. and is pending for the last three years, therefore, keeping in view the interest of justice and also keeping in view there was no fault on the part of the defendant, therefore, 8 treat the application of the defendant under Order 9, Rule 7, CPC as an application under Order 9, Rule 13, C.P.C. for setting aside the ex parte judgment and decree and frame the following issues."

4. What is now seriously contended by Mr. Rana, learned counsel for the petitioner, is that firstly, the trial Court has completely misconstrued the provisions of Order 9, Rule 7, CP C. and secondly, it had no jurisdiction to convert the above noted application filed by the respondent la be one under Order 9 Rule 13, C.P C. under any provision of law including Section 151, C. P. C ; as a matter of fact this application had been filed much earlier to the passing of the ex-parte judgment and decree on 5th September, 1986.

5. Having heard the learned counsel for the parties. I find considerable merit in the stand of the petitioner. The scope of the proceedings under Order 9, Rule 7, C.P.C. and its place in the scheme of the provisions of the Code relating to the trial of suits, has been analysed threadbare in an authoritative pronouncement of the Supreme Court reported as Arjun Singh v. Mohindira Kumar, A. I. R. 1964 S. C. 993. The Court after referring to the contents of Rule 6(l)(a) of Order 9 which had been intepreted by it earlier in Sangram Singh v.