Punjab National Bank vs Vijai Kumar Dhariwal and others

Hari Nath Tilhari J.

This revision has been filed challenging the order dated 1021993, passed by learned Civil Judge, Unnao in Regu�lar Suit No. 56 of 1989 whereby the learned Civil Judge has allowed the application of defendant No. 2 i. e. Sri Vijay Kumar Dhariwal, opposite party No. 1 in the Civil Revision, whereby defendant No. 1 had prayed that the orders passed under Order 9 rule 6 CPC dated 29190 and 17392 be recalled and that the applicant may be allowed to participate in the suit and be heard in answer to the suit as if he has appeared on the date fixed for his appearance so that he may be able to file the written statement and plaintiff be directed to supply a copy of the plaint to him.

The learned court below after considering the affidavits of both the parties has allowed the application taking the view that the ex parte proceedings of the earlier date i. e. 29190 or 17392 if are allowed to continue, the defendant will suffer irreparable loss but if that order is withdrawn then plaintiff will not suffer such a loss, because of delay, which cannot be compensated in terms of money.

Having recorded these findings, the learned Trial Court allowed the application dated 5121992 and 2591992 and setaside the order dated 17392 and 29190 subject to payment of the costs of Rs. 100/.

Feeling aggrieved from that order, plaintiff has comeup in revi�sion under Section 115 of the Code of Civil Procedure.

I have heard Shri P. N. Mathur, learned Counsel for the revisi�onist and Sri Mohd. Arif Khan, learned Counsel for oppositeparties, who appears for defendant No. 2 i. e. opposite party No. 1 at whose instance and on whose application, orders dated 29190 and 17392 have been setaside.

This revision has been heard at the instance and request of the learned Counsel for opposite party No. 1 for expeditious hearing, and he says that his application for recall of order of attachment before the judg�ment is pending and delay in the decision or disposal of the revision is likely to delay the disposal of application for recall.

Sri Mohd. Arif Khan submitted that no party other than opposite party No. 1 may be adversely affected if at all by this Court order impugned has been passed an application moved by opposite party No. 1 only is entertained under Section 115 CPC and none else had made any such application as under Order IX rule 7 CPC.

Sri P. N. Mathur had no objections to argue the revision on merits so having heard Shri Mathur as well as Shri Mohd. Arif Khan on merits I propose to dispose the revision on merits.

Learned Counsel for the revisionist Sri Mathur submitted that the order passed by the Court below suffers from jurisdictional error as the Court has not recorded any specific finding to the effect that defendant No. 2 has shown sufficient or good cause for his absence on the previous dates. Sri Mathur submitted that establishment of sufficient cause for absence on previous date and a finding one way or the other is sine qua non for the exercise of jurisdiction under Order 9 rule 7 CPC. He submit�ted that if the defendant wanted to be relegated back to the position of the date on which he was absent and wanted that he should be deemed to be present and if he desires that he should be allowed opportunity to utilise the previous date on which he was absent he had to show sufficient and good cause otherwise in cases under Order 9 rule 6 CPC, a person, no doubt, can participate in the proceedings of the suit onwards but a per�son who claims to be allowed participation from tbe back date and to be allowed to do the act required to be done on the back date, sufficient cause had to be shown and the Court had to be satisfied about that and a finding was required to be recorded by Court below. That without recording any finding on the question or sufficient cause that sufficient cause has been established, Court had no jurisdiction to consider and allowthat application.

Sri Mohd. Arif Khan contended that the Court had recorded that finding and he referred to the observations of the Court below that if ex parte order or the order of ex parte hearing is allowed to stand, the defen�dant will suffer irreparable loss while if the order is recalled on payment of costs, plaintiff will not suffer, amounts in some manner to be sufficient cause. I am unable to accept the contention of Sri Khan. Order 9 rule 6

of the Code of Civil Procedure may be quoted hereinafter, it reads as under :

ORDER 9 RULE 6

Procedure when only plaintiff appears : (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then

(a) When summons duly served If it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte.

(b) When summons not duly servedIf it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant.

(c) When summons served but not in due timeIf it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hear�ing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.

(2) where it is owing to the plaintiff''s default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by postponement.

Order 9 rule 7 CPC is also material,

A perusal of Ordef 9 rule 7 provides that when defendant appears and assigns good cause for his previous nonappearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the date fixed for his appearance.

The emphasis in the expression is "for his previous nonappearance.

Having gone through the judgment of the Court below and heard the learned Counsels for the parties I have not been able to find that any rinding has been recorded by the Court below on the question of good cause for previous nonappearance of the defendant. There being no find�ing if good cause for previous no appearance has been shown or established the Court below could not proceed with the passing of the order it had passed. When the law requires certain things to be done and conferred a power to doing that things in certain specified manner that by necessary implication what follows from it is that Act has got to be done or that particular powers have got to be exercised in that manner alone and not otherwise, other modes of exercise of that power are closed, See State of Uttar Pradesh V. Singhara Singh (AIR 1964 Supreme Court page 358).

Under Order 9 rule 7 CPC, the condition precedent for exercise of power thereunder is showing or proving of existence of good cause for nonappearance on previous date and a finding in respect of it is necessary that good cause for nonappearance on previous date exists.

16 In this view of the matter and, particularly, in absence of any finding one way or the other about the existence or proof of sufficient or good cause for absence on the previous date, the Court could not pass that order.

In this view of the matter, the revision is allowed. The order" impugned is setaside and a direction is issued to the Court below to reconsider the application of the defendant No. 2 afresh in the light of the principles of law laid down above. Costs of the revision is made easy.

(Revision allowed.)