HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No.1801 of 2023

Smt. Mamta Rani

--Petitioner

Versus

Smt. Satya Devi

--Respondent

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Presence:-

Mr. Rajat Mittal, learned counsel for the petitioner.

Mr. Ankur Sharma, learned counsel for respondent.

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Hon'ble Pankaj Purohit, J.

By means of present writ petition, petitioner

has put to challenge the order dated 20.03.2023 (Annexure No.1) passed by learned Additional District Judge at Vikas Nagar in Civil Revision No.18 of 2022 (Smt. Satya Devi v. Mamta Rani), whereby the revision petition filed by the respondent-defendant was allowed and the order dated 27.04.2022 dismissing the application moved by respondent-defendant under Order

9 Rule 7 CPC to proceed ex parte was set aside.

2. Facts shorn-off unnecessary details are that petitioner-plaintiff instituted an Original Suit No.17 of 2017 Mamta Rani v. Smt. Satya in the Court of Civil Judge Vikas Nagar, Dehradun. The said suit was proceeded ex parte by order dated 06.11.2019. The ex parte evidence was taken by the trial Court and the suit 22.02.2020. The respondent-defendant, only three days prior to the date of judgment i.e. on 19.02.2020 moved an application under Order 9 Rule 7 CPC for setting

aside the order dated 06.11.2019.

3. The application moved under Order 9 Rule 7 CPC by the respondent-defendant was rejected by learned Civil Judge (Jr. Div.) Vikas Nagar by order dated 27.04.2022 by way of a detailed order. It is feeling aggrieved by the said rejection dated 27.04.2022, the respondent-defendant preferred Civil Revision No.18 of 2022, Satya Devi v. Mamta Rani in the Court of Additional District Judge, Vikas Nagar, Dehradun. The said revision was allowed by order dated 20.03.2023. The petitioner-plaintiff has come up before this Court feeling aggrieved by the aforesaid revisional order.

4. It is mainly contended by learned Counsel for the petitioner-plaintiff that application under Order 9 Rule 7 CPC was not maintainable in view of the fact that the matter was proceeded ex parte and it was listed for pronouncement of judgment on 22.02.2020, and therefore, at such belated stage, instead of filing the application under Order 9 Rule 7 CPC, the application under Order 9 Rule 13 CPC should have been filed by the respondent-defendant awaiting pronouncement of judgment. He further submits that as per the law enunciated by the Apex Court such an application under Order 9 Rule 7 CPC is not maintainable at a belated stage. Reliance has been placed by learned counsel for the petitioner on a judgment rendered by the Apex Court in the case of ‘Arjun Singh v. Mohindra Kumar and others’ reported in 1964 AIR, S.C. Page 993. He has mainly relied upon paragraph no.17 which reads as under: -

“So far as the case before us is concerned the order under appeal cannot be sustained even on the basis that the finding recorded in disposing of an application under O. IX, r. 7 would operate as res judicata when the same question of fact is raised in a subsequent application to set aside an ex parte decree under O. IX, r. 13. This is because it is not disputed that in order to operate as res judicata, the court dealing with the first matter must have had jurisdiction and competency to enertain and decide the issue. Adverting to the facts of the present appeal, this would primarily turn upon the proper construction of the terms of O. IX, r.7. The opening words of that rule are, as already seen, 'Where the Court has adjourned the hearing of the suit ex parte'. Now, what do these words mean? Obviously they assume that there is to be "a hearing" on the date to which the suit stands adjourned. If the entirety of the "hearing" of a suit has been completed and the Court being competent to pronounce judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under O. XX, r. 1, there is clearly no adjournment