Khazan And Ors. vs Union Of India And Anr.
2001 Latest Caselaw 1622 Del

JUDGMENT

R.C. Jain, J.

1. This revision is directed against the order of the learned Additional District Judge, Delhi, dated 15.3.2000, thereby allowing the defendants' application under Order 9 Rule 7 CPC and setting aside the order of ex-party proceedings subject to payment of Rs.2,000/- as cost.

2. Briefly, the relevant facts leading to the present revision petition are that the petitioner/plaintiff herein has filed a suit for permanent injunction against the defendant viz, Union of India through Secretary, Ministry of Home Affairs, through Secretary, Ministry of Environment and Forest and Government of NCT of Delhi through its Chief Secretary. The defendants were served with the summons of the suit but they absented and so were ordered to be proceed ex-parte vide an order dated 19.8.1999. Ex-parte evidence was recorded on 6.10.1999 and the case was adjourned to 8.10.1999 for arguments. On the adjourned date none was present and, therefore, the case was adjourned to 19.11.1999 for arguments/ orders. On 19.11.1999 appearance was put in on behalf of the defendants through counsel and the case was adjourned to 25.11.1999 for further proceedings. On 24.11.1999 an application under Order 9 Rule 7 was filed on behalf of the defendant praying for setting aside the order of ex-parte proceedings which came up for hearing on 25.11.1999 an application under Order 9 Rule 7 was filed on behalf of the defendants praying for setting aside the order of ex-parte proceedings which came up for hearing on 25.11.1999 and the court ordered the plaintiff to file reply to the said application and application under Section 5 of the Limitation Act by 15.12.1999. Reply to the applications was filed on behalf of the plaintiff and the defendant also filed their written statement on 15.12.1999. On a consideration of the matter the learned trial court allowed the application. The following observations made by the trial court are relevant:-

"The contention of the learned counsel for the plaintiff cannot be accepted. In the whole of the plaint the plaintiffs have not disclosed that the land has been notified by the Government as forest land, so it belongs to Government. There is litigation before the Hon'ble Supreme Court and the copies of the judgments and orders dated 25.1.96, 20.3.96, 3.4.96 and 10.5.96 have been placed on record of this case. These judgments show that matter has already been decided by Hon'ble Supreme Court, no reference given to these judgments by the plaintiff in the plaint."

"AS held in various judgments by Hon'ble Supreme Court that the working machinery of the Government is inactive and that the officials being lithargic to protect the interest of the Government, the Government should be given liberal attitude for the sake of public welfare.

"Even if the decree is passed ex-parte, the defendants are not debarred from filing the application under Order 9 Rule 13. If later on the application comes under Order 9 rule 13 the proceedings of this case will be reversed to the point. A. The passing of the decree, when the defendants have come prepared and have presented their defense, will be of no use. The decree will be on the basis of facts disclosed only by the plaintiffs, and the facts disclosed by the defendants will not be discussed in the ex-parte decree, which would mean partial justice. This partial justice is avoidable at this stage. Moreover the case was not fixed for orders, it was adjourned for hearing arguments.

3. There is no appearance on behalf of the respondents despite service of the notice and so the matter has been heard in their absence. I have heard Shri G. N. Aggarwal, learned counsel for the petitioner and have given my thoughtful consideration to his submissions. The foremost contention put forth on behalf of the petitioner is that the application under Order 9 Rule 7 CPC was not maintainable at the stage it was filed because the hearing of the matter had already been concluded and, therefore, the only remedy available to the defendants was to make an application under Order 9 Rule 13 CPC for setting aside the ex-parte decree, if one was passed. In support of his contentions the learned counsel for the petitioner has placed reliance upon a Division Bench Judgment of this Court in RFA No. 18/99 Suresh Kumar Malik v. M.S. Lakhani & Anr. . On the facts of the said case, the Division Bench of this court held that after completion of hearing of the suit, rule 7 of order 9 CPC has no application and, therefore, an application made under the said provision of law seeking to set aside the ex-parte order was not maintainable. In the said judgment the Division Bench after taking note of various proceedings in the case also held "when the "hearing" of a suit is completed and nothing remains to be heard further, Rule 7 will have no application on the facts of the said case. The Court further held that what remains to be done in the suit was only pronouncement of the judgment which is the function of the Court. The Division Bench further held that rule 7 would have been applied if the court has adjourned the case for instance, for recording evidence or for hearing arguments to another date. In this view reliance was placed on earlier judgments of this court in the case of Arti Sukhdev v. Daya Kishore 1992 RLR 442 and East India C. Manufacturing v. S.P.Gupta 1985 RLR 292.

4. Now coming to the facts and circumstances of the case in hand, it is pertinent that after recording the ex-parte evidence on 6.10.1999, the learned t rial court had adjourned the case for hearing of arguments on 8.10.1999. Arguments were not heard on this date and the case was again adjourned to 19.11.1999 for arguments/orders. On 19.11.1999, as there was representation on behalf of the defendants through the counsel the case was adjourned to 25.11.1999 and, therefore, it can not be said that the hearing of the suit was completed and nothing remained to be heard. In view of this factual position and the legal position which emerges from the aforesaid Division Bench decision of this court, the contention of the learned counsel for the petitioner that the application under Order 9 Rule 7 was not maintainable is devoid of any merits.

5. Having considered the matter in its entirety, this court is of the view that having regard to the averments made in the application under Order 9 Rule 7, there was sufficient cause which explained the absence/non-representation of the defendant on the date of hearing. The trial court was, therefore, justified in exercising judicial discretion in favor of the defendants/applicants and setting aside the order of ex-parte proceedings. Before parting with the case it may be observed that some of the observations by the learned trial court taken note of hereinabove made touched the merits of the case and, therefore, were not called for while dealing with an application under order 9 Rule 7 CPC.

6 In the result this revision petition is dismissed with no orders as to cost. The interim order staying the operation of the impugned order is hereby vacated and the trial court is directed to proceed with the matter further in accordance with law. Parties are directed to appear before the trial court on 29th October, 2001.