Satinder Pal Singh vs The State of Punjab

I.S. Tiwana, J.—In this petition u/s 115 C.P.C., the following facts are not in dispute.

On a suit filed by the plaintiff-petitioner, the defendant respondent was served with a notice to put in appearance in Court on September 4, 1985ard it having failed to do that, was proceeded against ex-parte. The suit, however, was adjourned to 27th September, 1980 for evidence of the petitioner. The Court after recording the ex-parte evidence on 27tb September, 198.") and 5th November, )985, adjourned it for hearing the arguments on 9th November, 1985. Having heard the arguments on that date, the case was fixed for 28th November, 1985 for orders, Since the presiding officer remained on leave for a pretty long time, the suit was ultimately decreed on 5th September, 1986.

During the pendency of the above noted proceedings, the respondent filed an application under Order 9, Rule 7, C. P. C. on 13th March, 1986 for setting aside the ex parte proceedings taken against it inter alia pleading therein that the absence of the respondent m these proceedings was neither mala fide or intentional, nor deliberate but was on account of procedural wrangles which had to be gone through in the different sections of the Department for putting in proper representation on behalf of the State Government. The petitioner, while contesting the various assertions made on behalf of the respondent, raised the plea that not only ex-parte judgment and decree had by then been passed against the respondent but the very application under Order 9, Rule 7 was not maintainable as on the date it was filed, i.e., 13th March, 1986 or on any subsequent date no hearing in the suit was to take place and the case was only fixed for orders or pronouncement of the judgment The lower Court has disposed of the matter vide its impugned order in the following manner :-

"Since the defendant had moved the application on 15(13).3.1986 for setting aside the ex-parte proceedings, therefore, I hold that there is no need for the defendant to file the application, for setting aside the judgment and decree because the present application had been moved before passing the ex-parte judgment and decree. It is also settled principle that no one should (be) allowed to suffer due to the acts the Courts. Since the circumstances of this Court are such that it was due to the non-availability of the presiding offices1 of this Court that the present situation has arisen. Since the present application has been filed by the defendant under Order 9, Rule 7, C.P.C. and is pending for the last three years, therefore, keeping in view the interest of justice and also keeping in view there was no fault on the part of the defendant, therefore, 8 treat the application of the defendant under Order 9, Rule 7, CPC as an application under Order 9, Rule 13, C.P.C. for setting aside the ex parte judgment and decree and frame the following issues."

What is now seriously contended by Mr. Rana, learned counsel for the petitioner, is that firstly, the trial Court has completely misconstrued the provisions of Order 9, Rule 7, CP C. and secondly, it had no jurisdiction to convert the above noted application filed by the respondent la be one under Order 9 Rule 13, C.P C. under any provision of law including Section 151, C. P. C ; as a matter of fact this application had been filed much earlier to the passing of the ex-parte judgment and decree on 5th September, 1986.

Having heard the learned counsel for the parties. I find considerable merit in the stand of the petitioner. The scope of the proceedings under Order 9, Rule 7, C.P.C. and its place in the scheme of the provisions of the Code relating to the trial of suits, has been analysed threadbare in an authoritative pronouncement of the Supreme Court reported as Arjun Singh Vs. Mohindra Kumar and Others, . The Court after referring to the contents of Rule 6(l)(a) of Order 9 which had been intepreted by it earlier in Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, . expressed as follows :-

"The opening words of that rule are, as already seen, ''Where the Court his 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 data to which the suit stands adjourned. If the entirety of the ''hearing" of the suit has been compteten and the Court being competent to pronounce the judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under Order XX, Rule 1, there is clearly be 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", Order IX, Rule 7 could have no application and the matter would stand at ;the stage of Order IX, Rule 6 to be followed up by the passing of an ex parte decree making Rule 13 the only provision m Order IX applicable. If this were the correct position, it would automatically follow that the learned Chit Judge could have no jurisdiction to entertain the application dated May 31,. 1958 pu-porting to be under Order IX, Rule 7, or pass any order thereon on the merits."

It is therefore, abundantly clear that by the date the above noted application was filed by the respondent, i.e., on. 13th March, 1986, no hearing in the suit was to lake place and, therefore, this application was not maintainable As has been indicated by the. Supreme Court at that stage, the defendant had only to wait for the pronouncement of the ex-parte order or judgment and then to resort to Older 9, Rule 13, C.P C. for the setting aside of the same. In the instant case the present application was filed even before the passing of the ex-parte judgment and. decree and, therefore the application cannot possibly be treated as one for setting aside the same. Further, as has been noticed in the above noted judgment itself, i.e., Arjun Singh''s case (supra) also the Court had no juridiction either u/s 151 C P C. or any other provision to convert the present application filed by the respondent under Order 9, Rule 7, to be one under Order 9, Rule 13, C P.C. The Supreme Court opined that every contingency which is likely to happen in the trial vis-a-vis the non-appearance of the defendant at the hearing of a suit has been provided for under Order 9, Rule 7 and Order 9, Rule 13 These rules between themsolves exhaust the whole gamut of situations that might arise during the coarse of the trial. If thus provision has been made for every congingency, it stands to reason that there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of justice. Further, the provisions of Section 151, C.P C. can only be invoked to secure the ends of justice. If at the stage of Rule 7, power is vested in the Court, and alter tie: decree is passed, Order 9 Rule 13 becomes applicable and the party can avail himself of that remedy, it is very difficult to appreciate the ends of justice which are supposed to be served by the Court by passing the impugned order. The approach adopted by the lower Court appears to be wholly unrealistic in as much as there was no ex-parte decree or judgment which was sought to be set aside on March 13, 1986 when the present application was filed.

For the reasons recorded above, I allow the petition end set aside the impugned order and dismiss the above noted application of the respondent but with no order as to costs.