Ashok Kumar Agarwal vs Ajay Kumar

Ram Surat Ram (Maurya), J.—Heard Sri Arpit Agarwal for the petitioner.

This petition has been filed for setting aside the orders of Civil Judge (S.D.) dated 10.9.2015 by which he has recalled the order dated 15.9.2014, proceeding ex parte against the defendant and the order of Additional District Judge dated 23.1.2016, dismissing the revision of the petitioner against the aforesaid order.

In the suit, Ajay Kumar was the defendant. 25.9.2014 was the date fixed before the trial court. On that day, Ajay Kumar committed default, therefore, the suit was proceeded ex parte against him.

The counsel for the petitioner submits that 11.11.2014 was the date fixed for ex parte hearing. On 11.11.2014, Ajay Kumar appeared before the court below, but he did not file any application under Order 9, Rule 7 CPC. It is only when the case was adjourned on 11.11.2014, then in the meantime, on 14.11.2014, he moved an application for recalling the order dated 20.9.2014. The petitioner filed his objection and counter affidavit to the application and specifically raised the plea that on 25.9.2014, the defendant was not ill and the fact that his counsel did not watch the case was also incorrect, in as much as, the counsel has moved an application for adjournment, after passing the order dated 25.9.2014. Thus, both the facts were incorrect and the respondent did not file any rejoinder affidavit to the allegations made by the petitioner, therefore, the allegation made by the petitioner in the counter affidavit being unrebutted and was liable to be relied upon, but the court below has illegally ignored it. The application under Order 9, Rule 7 CPC was not maintainable, in as much as, the defendant appeared on 11.11.2014 and did not move any application under Order 9, Rule 7 CPC, therefore, he was not entitled to move an application on 14.11.2014. These grounds were specifically raised before the court below, but has been illegally ignored by the court below.

I have considered the arguments of counsel for the petitioner and examined the record. So far as the contention raised that the grounds raised in the counter affidavit remained unrebutted is concerned, it is not liable to be accepted, in as much as in the affidavit filed in support of the application on 14.11.2014, the defendant has stated that he was ill on 25.9.2014 and therefore, unable to attend the court and the counter affidavit has been filed to this affidavit. Thus, there being a counter version, contrary to each other and the court below was competent to believe one or the other version, it cannot be said that the version of the defendant remained unrebutted, ignoring the previous affidavit of the defendant.

So far as the contention that application under Order 9, Rule 7 CPC was not maintainable on 14.11.2014 as the defendant put appearance on 11.11.2014 is concerned, it is misconceived. Order 9, Rule 7 CPC provides that where the court has adjourned the hearing of the suit ex parte and the defendant on or before such hearing appears and assigns good reason for his previous non-appearance, he may upon such terms as the court directs as to the cost or otherwise, be heard. Thus, the court adjourned the suit on 25.9.2014 for ex parte hearing on 11.11.2014, but on 11.11.2014, ex parte hearing was not done and the case was again adjourned, therefore, the suit was adjourned for ex parte hearing. The adjourned date be also treated as the date fixed for ex parte hearing, within the meaning of Order 9, Rule 7 CPC. The contention in this respect is misconceived and is not liable to be accepted. The counsel for the petitioner has relied upon the judgment of this court in the case Prahlad Singh v. Niyaz Ahmad, AIR 2000 (40) AllLR 428 in which it has been held that the date fixed according to provision of Order 9, Rule 6 CPC, the application under Order 9, Rule 7 CPC is required to be moved before it.

I respectfully do not agree with the aforesaid case law. In as much as the Supreme Court has now held in various cases that the date of hearing fixed by the court shall be treated adjourned date of hearing also.

The petition has no merit and is dismissed.