The main legal point established is that an application under Order 9 Rule 7 CPC can be entertained after the matter has been adjourned for further hearing, and the sufficiency of cause shown for non-appearance must be considered in the context of advancing the cause of justice.

Anjani Kumar Mishra, J.

Heard Shri Anoop Trivedi, learned counsel for the revisionist and Shri Saurabh Srivastava for the contesting respondent.

2. This civil revision has been filed challenging an order dated 09.12.2016 passed in Suit No.5 of 2015 filed by the revisionist, whereby an application under Order 9, Rule 7 C.P.C., filed by the defendant opposite party, has been allowed.

3. The contention of learned counsel for the revisionist is that upon the suit being filed, an interim injunction was granted in his favour. The suit itself was for injunction under the Trade Marks Act, 1999. The registered notice sent to the defendant was refused on 02.07.2015. The Court vide order dated 18.02.2016 held service to be sufficient and directed the suit to proceed ex parte, against the defendants.

4. The oral submissions were advanced on 12.08.2016, on which date written arguments were also called for and the next date fixed was 26.08.2016. The written arguments were filed on 20.08.2016.

5. On 26.08.2016, the matter was heard and 08.09.2016 was fixed for delivery of the judgment. Later, the day, after conclusion of arguments, the defendant filed the application under Order 9, Rule 7 CPC (Paper No.36 Ga-2).

6. It is contended that this application, filed after conclusion of arguments and since the matter had been fixed for delivery of judgment on 08.09.2016, was not maintainable and the same has wrongly and illegally been allowed. In support of this contention, reliance has been placed upon the decision of the Apex Court in Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993 (1), especially paragraphs 8, 9 and 17 thereof.

7. The second contention raised is that the Court below has wrongly and illegally allowed the application, under Order 9, Rule 7 CPC, without recording any finding as to the sufficiency of the cause shown for non appearance on earlier dates. Such a finding is absolutely mandatory before the application could have been allowed and order to proceed ex parte passed on 18.02.2016 could have been recalled.

8. In rebuttal, Shri Saurabh Srivastava, counsel for the contesting opposite party has submitted that the opposite party had no knowledge of the proceedings earlier and the application under Order 9, Rule 7 CPC was filed immediately after acquiring knowledge of the pendency of the proceedings. The suit had been filed at Kanpur, while he is resides and carries on business in Meerut. The impugned order has been passed for deciding the suit on merits after hearing the parties. There is no intent on the part of the opposite party to delay the proceedings because along with the application for setting aside the order to proceed ex parte, under Order 9, Rule 7 CPC, the written statement had also been filed.

9. In support of his contention, reliance has been placed upon Lal Devi and another v. Vaneeta Jain and others; (2007) 7 SCC 200 and Aneja Hire Purchase Private Limited, Automobiles Finance v. Additional District Judge, Court No.7 Bareilly, and others 2010 (3) ARC 214. He has further submitted that the decision of this Court in the case of Aneja Hire Purchase Private Limited is an answer to the judgment cited by the revisionist.

10. I have considered the submissions made by learned counsel for the parties and have perused the record as also the judgments cited by them.

11. In view of the decision of the Apex Court relied upon by the counsel for the revisionist, it stands settled that an application, under Order 9, Rule 7 CPC is to be entertained only if the hearing of the matter has been adjourned and such an application cannot be entertained after conclusion of arguments and when only the judgment remains to be pronounced.

12. A careful perusal of the order sheet of the suit, certified copy whereof has been filed on record reveals that it is true that on 26.08.2016, the matter was heard but the next date fixed therein i.e. 08.09.2016 was also for further arguments, if any. It is therefore clear that the court had adjour