Ramhet and others Vs Ajaypal Singh and others

S. Samvatsar, J.

This second appeal is filed by the defendants challenging the judgment and decree dated 29-3-1994 passed by the Additional District Judge, Lahar, District Bhind in Civil Appeal No. 17A/93. By the said judgment and decree the learned Judge has affirmed the judgment and decree dated 30-10-1993 passed by the Civil Judge Class I, Lahar in Civil Appeal No. 250A/90.

This appeal is admitted by this Court on the following substantial questions of law:

(1) Whether the application under Order 9, Rule 7, CPC was wrongly rejected by the trial Court holding that it was not maintainable?

(2) Whether the suit abated as a whole in the absence of the legal representatives of the deceased defendants Buche and Tijore?

The brief facts of the case are that the respondents-plaintiff filed a suit for declaration of his title in respect of the agriculture land bearing survey No. 327 having an area of 0.993 hectares. The said suit was filed on 1-5-1986. The notices of the suit were returned ''as served'', and since no one appeared, the defendants were proceeded ex-parte by order dated 9-3-1990. The case was then fixed for recording of ex-parte evidence on 8-5-1990 on that date ex-parte evidence was partly recorded, on 20-9-1993 the appellants moved an application under Order 9, Rule 7, CPC for setting aside ex-parte decree. The ex-parte evidence was closed by the plaintiff on 5-10-1993. The arguments on the application under Order 9, Rule 7, CPC were heard by the trial Court on that date and on 27-10-1993 the order was passed rejecting the said application holding that since the evidence is already closed the application filed by the present appellants under Order 9, Rule 7, CPC is not maintainable. For this purpose the trial Court has relied on the judgment by this Court in case of Kedarnath v. Tulsabai, 1980 Vol 1 M.P. Weekly notes Short Note 180 and, therefore, the ex-parte decree was passed. This ex-parte decree was challenged by the appellants by filing first appeal and by the impugned order the first appeal is rejected.

Now, the question which is to be decided by this Court is whether the application filed by the present appellants under Order 9, Rule 7, CPC is maintainable or not. The proceedings of the trial Court dated 22-9-1993 shows that the application under Order 9, Rule 7, CPC was filed on 20-9-1993. By this time, the evidence of the plaintiff was not closed and the evidence was closed on 5-10-1993 and, therefore, it cannot be said that the matter was closed for judgment or the hearing of the case was complete. The Supreme Court in case of Arjun Singh Vs. Mohindra Kumar and Others, has already laid down that any application filed under Order 9, Rule 7, CPC after evidence of the parties are closed is not maintainable as the hearing of the suit is already complete and the matter is reserved for judgment. According to the Supreme Court, any application filed after reserving the matter for judgment, is not maintainable and therefore Supreme Court has held that only remedy open to the defendants in such a case is to file an application under Order 9, Rule 3, CPC but that is not the situation in the present case. In the present case, it cannot be said that the entire hearing of the suit was completed on the date when the application was filed and, therefore, the application filed by the present appellants was very much maintainable and the two Courts below have erred in rejecting the said application as the same is not maintainable.

It is settled law that the provisions of Order 9, Rule 7, CPC are not of a penal nature and any application filed under Order 9, Rule 7, CPC is liberally allowed. For this purpose the learned counsel for the appellants has relied on the judgment of the Apex Court in case of G.P. Srivastava Vs. Shri R.K. Raizada and Others, which says that the application for setting aside ex-parte order should be liberally allowed. In view of the judgment, in my opinion, the trial Court should have liberally allowed the application filed by the present appellants under Order 9, Rule 7, Civil Procedure Code. Thus, both the courts have erred in rejecting the said application. The impugned order, therefore, deserves to be set aside and are hereby set aside. The application filed by the present appellants under Order 9, Rule 7, CPC is allowed and the order for proceeding ex-parte is set aside subject to payment of cost of Rs. 1,000/-.

Looking to the fact that the matter is pending for the last 15 years in the Courts below, it is directed that the trial Court shall proceed with the suit as expeditiously as possible without giving any unnecessary adjournments to any of the parties. The parties are directed to appear before the trial Court on 1st October 2002 and on that date the present appellants shall positively filed their written statement without asking for any adjournment.

The appeal allowed with no orders as to the costs.