1983 Supreme(MP) 789

IN THE HIGH COURT OF MADHYA PRADESH
G.P. Singh, J.
Abdul Majeed - Appellant
Vs.
Chowdhary Prem Chand - Respondent
Cr. No. 1442 of 1982 (J)
Decided On : 06-07-1983

Headnote:(1) Civil Procedure Code, 1908 – O. 9, R. 7 and O. 17, R. 3 (a) – suit fixed for evidence – proceeded exparte and fix for arguments – O. 17, R. 3 (a) not applicable – provisions under O. 9, R. 7 apply to such a case.

       (2) Civil Procedure Code, 1908 – S. 151 and O. 9, R. 7 – suit fixed for evidence – defendant remained absent at the time of call – appeared subsequently with witnesses – evidence may be recorded under inherent powers.

        Short Note

       1. This revision is directed against the order dated 21 August 1982 passed by the Civil Judge Class II, Banda, dismissing an application made by the defendant – applicant under Order 9, rule 7 of the Code of Civil Procedure in Civil Suit No. 4 – A of 1978.

       2. Held : The suit was fixed for 30th April, 1982 for the evidence of the defendant. The defendant did not appear when the suit was called on for hearing. It was adjourned for arguments to some other date. The defendant later appeared on the same date and made an application that for some reason he and his witnesses came late and that they should be examined. This application was made under Order 9 rule 7 of the Code which was refused by the order under revision. In the opinion of the Court below, Order 9, rule 7 was not applicable as the hearing of the suit was not adjourned. It appears that the learned Civil Judge was of the view that the date fixed for arguments was not the date for hearing. That is clearly erroneous. Order 17 rule 3 (a) was not applicable as the suit was not decided forthwith. In my opinion, Order 9 rule 7 was clearly applicable. Even otherwise, when the defendant and his witnesses turned up on that very date and he made an application, the Court could have used its inherent powers in examining the defendant and his witnesses. Revision allowed.