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2015 Supreme(UK) 411
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
U.C. DHYANI, J.
M/s. ZX Sources Pvt. Ltd. - Revisionist
Vs.
Sanjay Kumar Nagalia - Respondent
Civil Revision No. 129 of 2014
Decided On : 20-08-2015
For the Revisionist :Mr. Vikas Bahuguna, Advocate.
For the Respondent:Mr. Ramji Srivastava, Advocate.
The main legal point established in the judgment is that an application under Order 9 Rule 7 CPC can be filed at any stage till the arguments have not been heard and judgment has not been reserved or ex-parte judgment has not been delivered.
Headnote:
Order 9 Rule 7 CPC - Application Maintainability - AIR 2001 Allahabad 78, 2005 (4) AWC 3319, AIR 1922 All. 110, 2004 (4) AWC 3064 - The court discussed the maintainability of an application under Order 9 Rule 7 CPC and referred to various judgments to conclude that such an application can be filed at any stage till the arguments have not been heard and judgment has not been reserved or ex-parte judgment has not been delivered.
Fact of the Case:
The plaintiff filed a suit against the defendant for cancellation of sale deed. The defendant did not appear on the date of hearing, and the suit was directed to be proceeded ex-parte against the defendant. The defendant later filed an application under Order 9 Rule 7 CPC to set aside the ex-parte order, which was dismissed by the court.
Finding of the Court:
The court found that the application under Order 9 Rule 7 CPC was maintainable and allowed the civil revision, setting aside the part of the impugned order that held the application as not maintainable.
Issues: The main issue was the maintainability of the application under Order 9 Rule 7 CPC filed by the defendant to set aside the ex-parte order.
Ratio Decidendi: The court held that the application under Order 9 Rule 7 CPC can be filed at any stage till the arguments have not been heard and judgment has not been reserved or ex-parte judgment has not been delivered.
Final Decision: The civil revision was allowed, and the matter was remitted back to the court below to consider the application of the defendant under Order 9 Rule 7 CPC on merits.
U.C. DHYANI, J.
1. Present Civil Revision has been filed by the defendant-revisionist being aggrieved against the order dated 04.09.2014 passed by the Civil Judge (S.D.), Dehradun in O.S. No. 45 of 2013, Sanjay Nagalia v. Z.X. Sources Pvt. Ltd.
2. A suit was filed by the plaintiff-respondent against the defendant-revisionist for cancellation of sale deed. On 04.12.2013, the defendant did not appear on the date of hearing. On the selfsame day, the suit was directed to be proceeded ex-parte against the defendant and the case was fixed for 03.03.2014 for adducing evidence of the plaintiff.
3. On 03.03.2014, the suit was again adjourned to 06.05.2014. In the meanwhile, on 07.04.2014, an application under Order 9 Rule 7 CPC was moved on behalf of the defendant to set aside the order whereby the suit was directed to be proceeded ex-parte against the defendant. This application was dismissed by the impugned order dated 04.09.2014 on the ground that the said application was not maintainable.
4. Learned counsel for the respondent relied upon a decision of Hon'ble Allahabad High Court in Prahlad Singh v. Niyaz Ahmad, AIR 2001 Allahabad 78 (Lucknow Bench), whereby it was held:
“6. In this case, admittedly the summons were duly served upon the defendants-petitioners. The Court was therefore, rightly passed the order on 19.5.1994 to proceed ex parte under the aforesaid rule. The next date fixed for hearing after 19.5.1994 was 15.7.1994.
Order IX, Rule 7, C.P.C. reads as under:
“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 ex parte and the defendant, at or before such hearing appears and assigns good cause for his previous non-appearance, he may. upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he appeared on the day fixed for his appearance”.
7. The application under Order IX, Rule 7. C.P.C. as it is evident from the reading of the aforesaid rule, can be filed at or before the next date fixed for hearing. In the Instant case, admittedly the application under Order IX, Rule 7. C.P.C. was filed by the petitioners on 6.8.1994. It was the date after the next date fixed under Order IX. Rule 6. C.P.C.
8. In view of these facts, the application filed by the petitioners under Order IX, Rule 7, C.P.C. was legally not maintainable.
5. Learned counsel for the revisionist, on the other hand, relied upon a decision of Hon'ble Allahabad High Court in Jagardeo v. Mohan Lal, 2005 (4) AWC 3319, wherein it was observed as under:
“5. Learned counsel for contesting respondent no. 1 has cited an authority of this Court in Prahlad Singh v. Niyaz, 2000 AWC 1721 to contend that application under Order IX Rule 7 C.P.C. can be filed only on the next date, which is fixed on the date when order directing the suit to proceed ex-parte is passed. This authority has been referred to by the revisional court also. In the said authority of Prahlad Singh application under Order IX Rule 7 CPC was filed after conclusion of the evidence. It was filed on the date fixed for arguments. In the authority of Prahlad Singh it was also observed that similar application under Order IX Rule 7 CPC had earlier been rejected on merit hence subsequent application under the same provision was barred by Section 11 CPC. (res judicata).
6. The view that application under Order IX Rule 7 CPC can be filed only on the date fixed while directing the suit to proceed ex parte and not afterwards taken in the aforesaid authority of Prahlad Singh is neither in consonance with Order IX Rule 7 CPC which nowhere places such restriction nor with the judgments of the Supreme Court in Sangram Singh v. Election Tribunal, AIR 1955 SC 425 and Arjun Singh v. Mahendra Kumar, AIR 1964 SC 993. The only restriction is that the application shall be filed before the conclusion of the hearing. The said view is directly in conflict with Division Bench
