The discretionary nature of 'good cause' under Order 9 Rule 7 allows courts to emphasize access to justice over procedural technicalities.

JUDGMENT

Petitioner filed O.S.No.345 of 2009 in the court of learned Sub Judge, Ernakulam for a decree for prohibitory injunction to restrain respondent No.2, a company from siphoning its funds and for other reliefs. Respondent No.2 appeared in the suit on 04-06- 2009 but, did not file a written statement in spite of sufficient opportunity given to it. Thereon it was set ex parte on 18-08-2009. Suit was listed for trial on 20-05-2010. By that time respondent No.2 filed written statement with an application to set aside the ex parte order against it. That application was opposed by petitioner contending that there is no good cause shown by respondent No.2 to set aside the ex parte order against it and that there is huge delay in filing the application. Learned Senior Advocate tells me that there was also an application filed by petitioner to summon respondent No.2 for cross examination on the affidavit it filed but learned Sub Judge without even referring to that application, casually allowed the application, set aside the ex parte order and received the written statement which has resulted in much difficulties and inconvenience to the petitioner. Learned Senior Advocate has taken me through the order passed by the learned Sub Judge.

2. In the affidavit in support of Ext.P6, application to set aside the ex parte order against respondent No.2 in support of affidavit the deponent who is its director stated that he has been permanently staying at Bombay and often been out of that place. Counsel who was appearing for respondent No.2 in the court below while so, informed him that though the written statement was prepared and got signed, by an inadvertent mistake committed by the clerk it was not filed and it remained in the file itself. Counsel noticed that mistake only on 27-02-2010. Only on getting information from the counsel he learned that respondent No.2 was set ex parte on 18-08-2009. He therefore requested that respondent No.2 may be given an opportunity to contest the case.

3. Under Order 9 Rule 7 of the Code of Civil Procedure (for short, “the Code”) respondent has to show 'good cause' for his previous non appearance. The expression 'good cause' occurring in Order 9 Rule 7 need only a lesser degree of evidence when compared to the expression “sufficient cause” occurring in Order 9 Rule 13 of the Code. The question, what is 'good cause' is to be decided with reference to the facts and circumstances of each case. Here is a case where the director of respondent No.2 has stated in the affidavit in support of Ext.P6, application that he is permanently staying at Bombay and that often, he will be out of station. He also stated that it is on account of inadvertent mistake committed by the clerk of the counsel that written statement prepared on behalf of respondent No.2 was not filed on time. Learned Sub Judge accepted the fact that there was delay in respondent No.2 filing the application. Learned Sub Judge also went to the extent of saying that the explanation is not that much sufficient but observed, that alone was not sufficient to defeat the application. According to the learned Sub Judge, discretionary power of the court has to be exercised. Discretion is the power to administer justice in accordance with and regulated by the known principles of law. Here is a case where admittedly there was some delay on the part of respondent No.2 in filing the written statement but it came up with an application to set aside the ex parte order against it before commencement of trial. In such a situation, it cannot be said that when learned Sub Judge allowed respondent No.2 to take part in the proceeding and received written statement any illegality or irregularity requiring correction by this court. 4. It is pointed out by learned counsel that there is no reference to the application filed by petitioner to summon the deponent for cross examination as to the statements in his affidavit in support of Ext.P6, application. Evidence on an appl