1981 Supreme(MP) 670

C. P. Sen, J.
Charti v Ramrudra Sarar.
C. A. No. 1228 of 1980 (I); Decided on 4-12-1981.

Headnote:Civil P. C., 1908 -- O.9, R. 7-- setting aside ex parte order -- only thing to be seen is whether defendant honestly wanted to make appearance or his non-appearance was with some ulterior motive -- provision to be construed liberally.

        The plaintiff non-applicant filed a suit for specific performance of contract for sale of two fields for a consideration of Rs. 600/-. The case was fixed for 5-12-1980 for filing of the written statement. The defendant receiving summons of the suit a few days before the hearing on 5-12-80, so could not file the written statement and did not appear inspite of service of summons. The Court proceeded ex-parte against her on 5-12-80. The counsel for the defendant filed his Vakalatnama and also an application under O. 9, rule 7 of the Code for setting aside the exparte order on 8-12-1980 saying that by mistake he had noted a wrong date in his diary and the defendant was not present as he has instructed the defendant not to appear as her presence was not necessary. The application has been rejected because the counsel for the defendant has not filed an affidavit, nor affidavit of the defendant has been filed stating that she was instructed by her counsel not to remain present on 5-12-1980, and as such no sufficient cause has been shown for setting aside the exparte order.

        Held : After hearing the parties, I am of the opinion that the trial Court ought to have set aside ex parte order under Order 9, rule 7. It is not a penal provision. The defendant appeared within three days of the date fixed for filing of the written statement and moved an application, has to be liberally construed and according to me, the defendant has shown just cause for her non-appearance on 5-12-1980. The Court has only to see whether the defendant honestly wanted to make her appearance in the suit and her non-appearance was with any ulterior motive.

        Accordingly the revision is allowed, the order of the trial Court is set aside and the exparte order dated 5-12-1980 is quashed. The trial Court is directed to proceed with the suit in accordance with law, after giving opportunity to the defendant to file her written statement. Revision allowed.