1980 Supreme(MP) 377

B C. Varma. J.
Mankunwarbai v. Girjabai.
S. A. No. 548 of 1979 (J); Decided on 30-10-1980.

Headnote:(l) Civil P. C., 1908-O. 9, R. 7-application for setting aside exparte order-maintainability of-case fixed (or hearing arguments-application is maintainable-hearing -meaning of.

       (2) Civil P. C., 1905-O. 18, R 2 (2) and (3)-hearing of arguments-- whether is a part of hearing in the suit.

       The suit is one for partition by Girjabai who is the daughter of one Bhaiyalal. The sale deed under which the title is claimed shows Bhaiyalal and his wife Bhembai as the purchasers. Girjabai as daughter, therefore claims half interest in the suit land after the death of Bhaiy lal which took place. on 21-2-61. The appellant claims under a sale deed dated 26-11-73 executed by Khemabai in his favour. When the suit came up for recording evidence on 21-1-77, the appellant remained absent at the time when the case was called on for hearing. The Court recorded the absence and proceeded exparte. Ex-parte evidence was recorded and the case was adjourned for arguments on 22-2-77. However, at 4.30 p. m., the appellant appeared and made an application under Order 9, rule 7 of the Code of Civil Procedure for setting aside the exparte proceedings. No affidavit in support of that application was filed then. The application was put up for hearing on 22-2-71. On the date. i.e, 22-2-77 time was granted to the opposite party to file a reply to that application. However, on 28-2-77, when the application came up for hearing at about 3.00 0clock, the appellant remained absent and the application was dismissed in default. The case was then posted for judgment for 2-3-77. Again the very day at about 2.30 p. m. the appellant appeared and filed an affidavit in support of his application. The case was then posted for consideration on 2-3-77. The order· sheet dated 2-3-77 shows that for good cause being shown the application under Order 9, rule 7 of the Code of Civil Procedure. which was dismissed on 28-2-77, was restored and the opposite party was given time to file a reply to that application. Reply was then filed and on 22-3-77, the parties were heard on merits ·of that application. Then by an order dated 23-3-77 (recorded in the order-sheet of that date). the trial Court rejected that application holding that it was not tenable because the case was not adjourned for hearing but was closed for judgment and, therefore, the decision in Arjun Singh v. Mohindra Kumar (AIR 1964 SC 993) fully covered the case.

       The lower appellate Court has concurred with this view and has upheld the rejection of the application.

       Held: After hearing the learned counsel for the parties, I am of the opinion that the judgment based upon thed`rejection of the application under Order 9. rule 7, Civil Procedure Code cannot be supported. The narration of the various· order-sheets would. show that application under Order 9. rule 7 of the Code for setting aside the exparte order was made when the case was only adjourned for hearing arguments and not for pronouncing judgment. The fact that the application was dismissed in default and the case was then posted for judgment will not in any way alter the matter because that application was restored to file before the judgment was pronounced. The result is that the application which was ultimately considered was filed at the time when the case was not" adjourned for pronouncing judgment but was adjourned for hearing arguments.

       Question however, is whether the posting of the case for hearing arguments is adjourning the case for hearing within the meaning of Order 9.rule 7 of the Cod-:. As pointed out by Supreme Court in Ajun Singh v. Mohindra Kumar (AIR 1964 SC 993), an application under Order 9, rule 7 of the Code is not maintainable when the case is only adjourned for pronouncing judgment and not for hearing. It has been ruled that the adjournment of tile case for pronouncing judgment is not adjourning it for hearing. Subd`rules (2) and (3) of rule 2 of Order 18 or the Code provides that after the parties have adduced evidence they may address the Court on the whole case. This only means that the parties are entitled to argue. The argument may be hoard on the same day or the Court may adjourn the hearing for that purpose to a future date after the close of evidence. This would only indicate that hearing arguments is the part of the hearing in the suit. It was so held by the Punjab High Court in Hans Raj v. Sohan Singh (AIR-1954 Punjab 207). It was said in that case that the expression "hearing of the suit" means the hearing at which the Judge would be taking evidence or hearing arguments of would have to consider questions relating to the; determination of the suit which would enable him finally to come to an adjucation upon it. Similar view was taken by Andhra Pradesh High Court in Saleh Bin Omer v.

       Vijayachand (AIR 1966 AP 295) where the learned Judge has held that the hearing of suit includes both production of evidence as well as arguments. It has been pointed out that hearing of the suit come to an end only when judgment is either pronounced or the suit is posted for judgment where it is reserved. It has specifically been held that the hearing is not concluded when the case is posted for arguments though recording of evidence has been finalised. This Court in Bhojraj v. Diwakar [{Civil Revision No. 484 of 1964 decided on 8-1·65 (1965 MPU Short Note 74)] has expressly held that when the case is posted for hearing arguments. it is not posted for pronouncing judgment. hearing of the suit continues and an application under Order 9 rule 7 of the Code of Civil Procedure is maintainable. In yet another case in Bhagwandas v. Rampyari [(Civil Revision No 448 of 1974 decided on 7-1-76 (1976 MPLJ, Short Note 80)] the same view has been held.

       I could not be persuaded to take a different view. I am. therefore. of the opinion that when the case is adjourned for arguments, the hearing of the suit continues and the Court is quite competent to entertain an application under Order 9, rule 7, Civil Procedure Code on that date, For. in that circumstance it cannot be said that the suit is adjourned for only pronouncing judgment.

       AIR 1964 SC 993, distinguished. AIR 1954 Pun. 207, AIR 1966 AP 295.1965 MPU SN 74 and 1966 MPLJ SN 80, relied on. Appeal allowed. Case remanded.