Advocates:
['GHANSHYAM JOSHI', 'MOHIT KUMAR', '', 'KM MEENU', 'SIDDHARTHA SINGH', 'P S BISHT', 'KSHITIJ SAH']

SL.

No

Date

Office Notes,

reports, orders or

proceedings or

directions and

Registrar’s order

with Signatures

COURT’S OR JUDGES’S ORDERS

WPMS No. 871 of 2022

Hon’ble Manoj Kumar Tiwari, J.

Mr. Ghanshyam Joshi, Advocate for the

petitioner.

Mr. Siddhartha Singh and Mr. Mohit Kumar,

Advocates for the respondent.

Heard learned counsel for the parties.

By means of this writ petition, petitioner has

challenged the order dated 10.03.2022 passed by

learned Civil Judge (Senior Division), Kashipur,

District Udham Singh Nagar in Civil Suit No. 117

of 2021. By the said order, application filed by

defendant (respondent herein) under Order 9 Rule 7

CPC was allowed subject to cost of Rs. 1,000/-. By

the same order, ex-parte interim order passed in

favour of plaintiff, on 11.10.2021, was also

recalled.

Perusal of earlier order dated 11.10.2021

reveals that based on the report of process server

that service of notice upon defendant is complete,

learned trial Court closed his opportunity of filing

objection to the temporary injunction application

and also of filing written statement.

By the same order, learned trial Court

allowed the temporary injunction application of

petitioner and restrained defendant, his servants,

agents, assignees etc., from interfering in peaceful

possession of petitioner and also from creating third

party interest over the property-in-dispute.

Defendant filed an application under Order 9

Rule 7 read with Section 151 CPC with the

contention that he is settled at Mumbai, but based

on a wrong service report that this house at Jaspur

was found locked, his opportunity to file

objection/written statement was closed, therefore,

the order dated 11.10.2021 be set-aside and he be

given

opportunity

to

file

objection/written

statement. The said application was allowed by

learned trial Court, vide order dated 10.03.2022,

which is under challenge in this writ petition.

Learned counsel for petitioner submits that

while allowing the application filed under Order 9

Rule 7 CPC, the order passed on temporary

injunction application of petitioner could not have

been recalled. He submits that the order, whereby

defendant

was

declared

ex-parte

for

non-

appearance, could have been very well be recalled.

The submission that learned trial court could

not have recalled the order, passed on temporary

injunction

application

of

the

petitioner,

is

unacceptable. Since order dated 11.10.2021 was a

composite order, whereby not only opportunity of

the defendant to file written statement/objection

was closed, but temporary injunction application of

the petitioner was also allowed, based on the report

of Process Server, therefore, when the court comes

to the conclusion that service of notice upon

defendant was not complete, then the very basis for

allowing the temporary injunction application of the

petitioner goes. Therefore, while allowing

application under Order 9 Rule 7 CPC, trial court

was justified in recalling the order of temporary

injunction.

Order 9 Rule 7 CPC is reproduced below:-

“7. Procedure where defendant appears on day of

adjourned hearing and assigns good cause for

previous non-appearance.- Where the Court has

adjourned the hearing of the suit ex-parte, and the

defendant, at or before such hearing, appears and

assigns good cause for his previous non-appearance,

he may, upon such terms as the Court directs as to

costs or otherwise, be heard in answer to the suit as

if he had appeared on the day, fixed for his

appearance.”

From perusal of the aforesaid provision, it is

apparent that where defendant assigns “good cause”

for his previous non-appearance then the court may

permit him, upon such terms as the Court directs, to

be heard in answer to the suit, as if he had appeared

on the day fixed for his appearance. It is thus

apparent that when application under Order 9 Rule

7 CPC is allowed, t