Madras High Court
A.T.Somasundaram vs G.Praveen on 7 November, 2024
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
C.R.P.[NPD].No.4458 of 2024
THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 07.11.2024
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
C.R.P.[NPD].No.4458 of 2024
A.T.Somasundaram
represented as Managing Director
M/s.Hillstar Developers Private Limited,
9/4-A, “Saravan Complex”, 2nd Floor,
Mettupalayam Road, R.S.Puram, Coimbatore – 641 002. . . . Petitioner
Versus
G.Praveen . . . Respondent
PRAYER : Petition filed under Article 227 of Constitution of India to set aside the
Order and decree dated 31.07.2024 passed in I.A.No.1 of 2024 in O.S.No.101 of
2023 on the file of the learned District Munsif, Udhagamandalam.
For petitioner : Mr.H.Haja Mohideen Gisthi
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C.R.P.[NPD].No.4458 of 2024
ORDER
Challenge has been made against dismissal of the petitions filed for setting aside the exparte Order and to reopen the evidence on the side of the plaintiff and to recall P.W.1 for cross examination, in the present Civil Revision Petition.
2. The suit has been filed for permanent injunction against the revision petitioner not to disturb the possession of the plaintiff. The dispute between the parties as culled out from the plaint is that the revision petitioner entered into a contract with the plaintiff for construction of a house within a particular time. As the construction has not been completed within the time, there arose dispute between the parties and the plaintiff had took over possession and set right the defective construction by himself. The avements proceeded further that the defendant tried to dispossess the plaintiff and sell the property to some third party. Hence, the suit has been filed.
3. In the suit, the plaintiff was examined as P.W.1 on 05.03.2024. However, cross examination has not been done by the defendant and the matter was adjourned for cross examination on 08.03.2024. Even on that day, as the Page 2 / 6 https://www.mhc.tn.gov.in/judis C.R.P.[NPD].No.4458 of 2024 cross examination has not been done, the defendant was set exparte and the evidence on the side of the plaintiff was closed and the matter was posted for judgment on 30.03.2024.
4. At this stage, the petitioner has filed an application to set aside the exparte Order under Order IX Rule 7 of Code of Civil Procedure. The trial Court considering the fact that the application has been filed after the arguments of the plaintiff was completed and when matter was posted for pronouncing judgment, held that the application under Order IX Rule 7 is not maintainable and dismissed the same. However, liberty has been given to the petitioner to file an application under Order IX Rule 13 to set aside the exparte decree. Challenging the same, the present revision has been filed.
5. The learned counsel appearing for the petitioner submitted along with application filed under Order IX Rule 7 Code of Civil Procedure, he has also filed applications to reopen the plaintiff side evidence and to recall P.W.1 for cross examination. All the applications have been dismissed. Hence submitted that the application filed to set aside the exparte Order is maintainable. Page 3 / 6 https://www.mhc.tn.gov.in/judis C.R.P.[NPD].No.4458 of 2024
6. I have perused entire materials. For easy reference, it is relevant to extract Order IX Rule 7 of Code of Civil Procedure :
“Where the Court had adjourned the hearing of the suit ex parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, 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 day fixed for his appearance.” The above provision makes it clear that where the Court has adjourned the hearing of the suit exparte and the defendant at or before such hearing appears and assigns good cause for his previous non appearance, such an application can be entertained by the trial Court. The opening words of Order IX Rule 7 is that where the Court adjourned the hearing of the suit exparte and therefore, when the hearing in the suit has been completed and adjourned for pronouncing judgement, this Court is of the view that the application filed under Order IX Rule 7 of Civil Procedure Code is not maintainable. Once hearing is completed and matter is posted for pronouncing judgment, application filed to set aside the exparte Order under Order IX Rule 7 will not be maintainable. This aspect has been reiterated by the Apex Page 4 / 6 https://www.mhc.tn.gov.in/judis C.R.P.[NPD].No.4458 of 2024 Court in Arjun Singh vs Mohindra Kumar & Ors reported in AIR 1964 Supreme Court 993 and Syed Chand Habeeb Died Per Lrs vs Md.Akbar And 9 Others reported in AIR 2012 SC 1101.
7. In view above settled position, when the matter has been adjourned for pronouncing judgment, the application has been filed to set aside the exparte Order. Hence, I do not find any merits to interfere with the Order of the trial Court. In fact, the trial Court has granted liberty to the petitioner to resort to the provisions under Order IX Rule 13 to set aside the exparte decree. Hence, the revision has to fail. It is for the petitioner to resort to Order IX Rule 13 of Code of Civil Procedure or to file an appeal as against the exparte judgment.
8. With the above observations, this Civil Revision Petition is dismissed.
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