Noor Alam and Others vs Irshad Azmi and Others

Manindra Mohan Shrivastava, J.�Heard. This petition has been filed by the petitioners aggrieved by order dated 14-03-2013, by which, application of the petitioners for setting aside ex parte order has been rejected.

The petitioners are defendants in the civil suit. On 24-04-2012, as the petitioners-defendants did not appear before the Court below, the trial Court proceeded ex parte against them. Thereafter, when the petitioners filed an application for setting aside ex parte order, the same was rejected by the Court below on 25-06-2012 (Annexure P-4) by upholding the objection that the application is not properly signed by the defendants No. 1 to 4. After that, another application was filed by the petitioners for setting aside ex parte order, the Court below vide other dated 14-03-2013 (Annexure P-6) rejected the application by stating that earlier application of the petitioners-defendants have already been rejected, therefore, second application is not maintainable and the same is liable to be rejected.

Assailing the correctness and validity of the impugned order, learned counsel for the petitioners submits that as the case was not fixed for hearing, therefore, the Court could not have proceeded ex parte against the petitioners. It is next submitted that even if the Court below had jurisdiction, the first application of the petitioners was rejected on technical grounds, and thereafter, when second application was submitted, the Court below ought to have considered the same on merits rather than rejecting the application on the ground that their earlier application had already been rejected. Sufficient cause was shown by the petitioners for their non-appearance. In the interest of justice, the Court below ought to have allowed the petitioners to contest the suit on merits.

On the other hand, learned counsel for the respondents No. 1 & 2 opposed the prayer and submitted that the petitioners, in order to dilate the proceedings, failed to appear, when the case was listed on 24-04-2012 and the trial Court rightly proceeded ex parte against them. First application for setting aside ex parte order was defective as it was not properly signed and therefore, it was rejected. Therefore, rejection of second application does not warrant any interference.

For more than one reason, the petition deserves to be allowed. Firstly, the case was not listed for hearing, and therefore, it was not within the jurisdiction of the Court to proceed ex parte against the petitioners. First application for setting aside ex parte order was rejected because the application did not contain signatures of the defendants. When second application for setting aside ex parte order was moved, the same was rejected on the ground that the application of the defendants has already been rejected earlier. The rejection was not on merits. Therefore, rejection of second application by the Court below by adopting hyper technical view cannot be countenanced.

In that view of the matter, the impugned order dated 14-03-2013 is set aside. Taking into consideration the grounds, which have been urged by the petitioners in application under Order 9 Rule 7 of the C.P.C., the stage of suit, particularly that the case was listed only for consideration of injunction application, the application of the petitioners filed under Order 9 Rule 7 is allowed without remanding the matter to the Court below. Accordingly, the petition is allowed. No order as to costs.