IMPORTANT POINT
Application by defendant for setting aside ex parte proceedings, under O. IX, Rule 7 CPC, can be moved during hearing of suit, after defendant set ex parte till hearing of final arguments in suit.

Janak Raj Kotwal, J.—Brief question raised in this petition under Section 104 of the Jammu and Kashmir Constitution (for short the State Constitution) read with Article 227 of the Constitution of India is:

Whether an application for setting aside ex parte proceedings would lie and ex parte proceedings can be set aside after final arguments in a suit have been heard and judgment reserved?

2. Facts, briefly stated, leading to this petition are that petitioner Jyoti Devi has filed a petition under Section 13(2) of Hindu Marriage Act against her husband, respondent Des Raj, in the Court of learned Munsif, Basohli. This petition was filed on 29.5.2012. Respondent appeared before the learned trial Court on 6.7.2012. He appeared on some more dates of hearing but was set ex parte on 13.2.2013. The learned trial court recorded petitioner’s evidence ex parte, closed her evidence on 31.10.2013 and listed the case for final arguments. Final arguments were heard in part on 31.12.2013, concluded on 18.1.2014 and the judgment was reserved for 17.2.2014. However, it appears immediately after the conclusion of the arguments and reserving the judgment on 18.1.2014, an Advocate, Shri S.K. Abrol, appeared on behalf of the respondent and filed an application for setting aside the ex parte proceedings against the respondent.

3. Petitioner filed objections to this application on 13.3.2014. On 29.3.2014, learned trial Court allowed the application subject to payment of Rs.5,000 as costs and adjourned the case to 17.4.2014. Learned trial Court, seems to have taken up, the case on 18.4.2014, when respondent’s counsel moved an application for waiver of costs imposed on 29.3.2014.

4. Petitioner invokes supervisory jurisdiction of this Court under Section 104 of the State Constitution for setting aside order dated 29.3.2014, whereby the trial Court has set aside the ex parte proceedings as also the order passed by the learned court on 18.4.2014.

5. I may, as it is apt, reproduce the orders passed by the learned trial Court on 18.1.2014 and 29.3.2014:

“18.1.2014. Counsel for petitioner presented ex parte arguments in open Court which has been heard. Petitioner also present, put up for orders on 17.2.2014.

At this stage Adv. S.K. Abrol appear on behalf of respondent and file application for setting aside ex parte proceedings. Copy of the application has been given to counsel of petitioner. Put up for objections on applications by petitioner on 17.2.2014.

“29.3.2014, counsel for parties present. Both the counsel present for arguments. Arguments heard. On the part of counsel of respondent/applicant, respondent has engaged his counsel from Kathua but due to negligence of counsel as he never file Vakalatnama and never appear on the behalf of respondent, ex parte proceeding were initiated. As it is negligence of counsel and as time period of one year has lapsed and in the interest of justice, the application for setting aside ex parte proceedings was allowed by imposing cost of Rs.5,000 to be paid to the petitioner. Counsel for respondent Des Raj, i.e. Adv. Harish Sharma undertakes to pay cost positively on next date of hearing otherwise application be dismissed. Put up on 17.4.2014.”

6. The question arising in this petition is no more res integra as far as this Court is concerned. An application by the defendant for setting aside ex parte proceedings, which lies under Order 9, Rule 7, Civil Procedure Code, can be moved during the course of hearing of the suit, that is, after the defendant is set ex parte till hearing of final arguments in the suit. However, neither an application under Order 9, Rule 7, Civil Procedure Codewould lie nor ex parte proceedings can be set aside after final arguments in the case are heard and order reserved. Remedy available to the defendant in that case is only to file an application for setting aside the ex parte judgment and decree under Order 9, Rule 13, Civil Procedure Code, if the suit is decreed against him. This view