ORAL JUDGMENT

1. Rule. Learned advocate Mr.Pratik Khubchandani waives service of notice of Rule for the respondents.

2. The short question arise in the petition is that whether at the stage of the argument fixed in the suit, can an application under Order 9 Rule 7 of the Code of Civil Procedure (for short ‘CPC’) be entertained by the Court to set aside the proceedings which took place ex-parte against him.

3. The brief facts leading to filing of this petition are as under. 3.1 The petitioner filed Regular Civil Suit No.222 of 2004 for specific performance of agreement dated 02.08.2004 for land bearing Survey Nos.278/3 paiki and 278/4 paiki of Mouje Kaniyad, Taluka and District Botad. The application for temporary injunction was allowed vide order dated 19.01.2005. The petitioners paid entire consideration at the time of agreement and they were in possession of the said land since then. Though the respondent was served, he did not appear and therefore, ex parte order was passed on 12.01.2005 by learned Trial Court. The respondent filed application at Exhibit-47 for setting aside ex parte proceedings and vide order dated 01.09.2014, learned Trial Court allowed the said application.

Hence, the petition.

4. Heard learned advocate Mr.B.J.Trivedi appearing for the petitioners and learned advocate Mr.Pratik Khubchandani appearing for the respondents.

5. Learned advocate Mr.Trivedi takes this Court through the certified copy of the Rojkam recorded by the learned Trial Court in Regular Civil Suit No.222 of 2004 to submit that the written argument in the suit was filed long back ago i.e. on 30.10.2009 and the matter was kept for oral arguments since then.

He would further submit that in view of such aspect when the suit was kept at the stage of argument, it does not satisfy the word ‘adjourned’ stated in Order 9 Rule 7 of CPC. There was no scene for further hearing. He would further submit that the law in this regard has been enunciated by Hon’ble Supreme Court in the case of Arjun Singh vs. Mohindra Kumar – AIR 1964 SC 993, whereby the three Judges Bench of the Hon’ble Supreme Court while interpreting the word ‘adjourned’ appearing in the Order 9 Rule 1 of CPC would submit that if the hearing in the matter is completed, it could not be said that the matter was adjourned for further hearing and in that way the application under Order 9 Rule 7 of CPC is not maintainable. Upon above submissions, he submits to quash the order passed below Exh.47 in Regular Civil Suit No.222 of 2004 allowing application of the respondent to contest the suit bi-parte. He would further submit that learned Trial Court was required to respect the interpretation of law made by Hon’ble Supreme Court in its true perspective but the learned Trial Court has committed serious error.

6. In view of the above submissions, learned advocate Mr.Trivedi for the petitioners submits to all this petition.

7. On the other hand, learned advocate Mr.Pratik Khubchandani referring to judgment of Himachal Pradesh High Court in the case of Jagat Ram and another vs. Ravi Kant and others – 2010 SCC Online HP 3910, and more particularly para 9 thereof, would submit that if the arguments were heard by “X” Judge and matter is transferred to “Y” Judge or now “Y”

Judge is presiding over the matter, the matter is required to be reheard. He would further submit that even if the application under Order 9 Rule 7 of CPC was initially not maintainable but in view of the fact situation that now the matter is required to be reheard by some other Judge, it could be said that the matter is adjourned for hearing. He would further submit that even otherwise the party should not be condemned unheard. Party should be given best chance before the learned Trial Court to lead his defense.

7.1 Learned advocate Mr.Khubchandani would further submit that even the provisions of Order 5 Rule 15 of CPC was not satisfied in the matter. There are two conditions which are requires to be satisfied; that defendant was not avai