Bachittar Singh vs Gurbachan Kaur and Others

K. Kannan, J.—The petition to set aside an ex-parte order under Order 9 Rule 7 was allowed. The grievance of the plaintiff is that he had been examined in-chief and so too were his witnesses. The defendant had been taking innumerable opportunities to cross-examine but when he was not present on the day when it was posted i.e. On 15.11.2011 after several opportunities, the Court set him ex-parte and the case was adjourned to another date. In the meanwhile the case had also been transferred to yet another Court and a petition was filed by the defendant to set aside the ex-parte order. The ground made in the application to set aside an ex-parte order was, according to the petitioner-plaintiff, a lame excuse that he did not know that the case had been transferred to yet another Court. The counsel would urge that on the day when the defendant was set ex-parte on 15.11.2011 there had been no transfer of proceedings. The Court had allowed the petition and permitted the defendant an opportunity to cross-examine the witnesses. The counsel would argue, while challenging the order passed by the Court below, that it should have been possible for the defendant to join the proceedings at the stage at which the case was posted at the time when he filed the petition to set aside an ex-parte order, but it would be gross abuse of process to allow him the benefit of setting the clock back, as it were and had also afforded opportunities to cross-examine all the plaintiff''s witnesses. A power under Order 9 Rule 7 is much wider than an occasion when the Court would be setting aside an ex-parte decree. If the court had been lenient I will still not think it would amount to any serious prejudice, for, the Court was only allowing for a disposal of the case on merits. Allowing suits to be disposed of without contest and coming with applications to set aside the ex-parte order or decree are unfortunately regular features and unless there is a very serious pre judice caused, I will find no reason to interfere with the same.

The Court had exercised its discretion to allow for full fledged trial and that according to me, is substantial justice. I will find no reason to interfere. The order is maintained and the revision petition is dismissed.