AI Structured Summary
Not yet generated for this judgment
Judgment
S. Jagadeesan, J.—Though the sole respondent was served through Court as early as 3.4.2002 and through the lower Court'' counsel, none
appeared for the respondent.
The petitioners filed O.S.No.526 of 1999 on the file of the Additional District Munsif, Namakkal for declaration of their title and for
consequential injunction. The
(2)respondent herein was served with the summons in the suit giving the date of hearing as 7.12.2000. The respondent did not appear in the suit
and ultimately, on 7.12.2000, they were set ex parte. The other defendant in the suit appeared and contested the claim of the petitioners. Evidence
was taken and after arguments were heard, the suit was listed for judgment on 21.9.2001. On that day, the respondent herein filed I.A.No.1042 of
2001 for setting aside the order dated 7.12.2000 setting the respondent herein ex parte. The said application was allowed by the Court below by
an order dated 1.10.2001, against which, the present revision has been filed.
The only contention of the learned counsel for the petitioners is that Order IX Rule 7 of the CPC is attracted only if the matter is posted for
hearing. In this case, the matter was not posted for hearing. The suit was listed for judgment on 21.9.2001 after the arguments were heard. Hence,
the said application itself is not maintainable.
As already stated, though the respondent was served, they are not represented by any counsel.
While considering the contention of the learned counsel for the petitioners, I find that there is some merit in the same. From the order of the
lower Court, it is clear that the respondent herein filed the said application only
(3)on the date when the case was listed for delivering the judgment. Because of the filing of the said application, the judgment was postponed and
the said application was taken up for disposal.
To mention about the conduct of the respondent, it may be worthwhile to point out certain materials available on record. The respondent has
sworn to the affidavit filed in support of the said application on 21.2.2001. The counsel signed the same on 2.9.2001 and filed in Court only on
21.9.2001, which is clear from the order of the Court below. Hence, the lethargic manner in which the respondent had taken up the matter clearly
reveals as to how best they have taken care of the public property. However, the fact remains that the said application has been filed only after the
arguments were over.
In such a case, the Supreme Court in the case of Arjun Singh Vs. Mohindra Kumar and Others, : held that Order IX Rule 7 of the CPC makes
it clear that the said application can be entertained only when the suit is taken up for the purpose of hearing. If the hearing of the suit was already
over, then, such application cannot be entertained. To extract the relevant portion, which is as follows :
Adverting to the facts of the present appeal, this would primarily turn upon the proper construction
(4)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 the suit has been completed and the Court being competent to pronounce the judgment then and there, adjourns the suit
merely for the purpose of pronouncing the judgment under O.XX R.1, there is clearly no adjournment of ""the hearing"" of the suit, for, there is
nothing more to be heard in the suit. It was precisely this idea that was expressed by the learned Civil Judge when he stated that having regard to
the stage which the suit had reached the only proceeding in which the appellant could participate was to hear the judgment pronounced and that on
the terms of rules 6 and 7 he would permit him to do that. If, therefore the hearing was completed and the suit was not ""adjourned for hearing"",
O.IX R.7 could have no application and the matter would stand at the stage of O.IX R.6 to be followed up by the passing of an ex parte decree
making R.13 the only provision in order IX applicable. If this were the correct position, it would automatically follow that the learned Civil Judge
would have no jurisdiction to entertain the
(5)application dated May 31, 1958 purporting to be under O.IX R.7, or pass any order thereon on the merits. This in its turn would lead to the
that the application under O.IX R.13 was not only competent but had to be heard on the merits without reference to the findings contained in the
previous order.
In view of the said principle, it is clear that the present application filed by the respondent cannot be entertained and hence, the Court below has
erred in allowing the same.
Accordingly, the civil revision petition is allowed. The order of the Court below is set aside. Consequently, the above CMP is dismissed.