Madhya Pradesh High Court
Daulat Singh vs Sundarlal (Dead) Through Its Legal ... on 8 September, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:20769
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 8 th OF SEPTEMBER, 2025
MISC. PETITION No. 3751 of 2022
DAULAT SINGH AND OTHERS
Versus
SUNDARLAL (DEAD) THROUGH ITS LEGAL HEIRS(A) MUNNI BAI
W AND OTHERS
Appearance:
Shri Jitendra Singh Kaurav - Advocate for the petitioners.
Shri Mohan Lal Bansal- Advocate for the respondents No.1 to 5.
Shri Sanjay Singh Kushwaha - Government Advocate for the State.
ORDER
This miscellaneous petition under Article 227 of the Constitution of
India has been filed against order dated 13/07/2022 passed by XII Civil
Judge, Senior Division, Gwalior in Civil Suit No.64-A/2013 by which an
application filed by respondents under Order 9 Rule 7 of C.P.C. has been
allowed and ex-parte proceedings recorded against respondents have been set
aside on certain conditions.
2. Challenging the order passed by the Court below, it is submitted by
counsel for petitioners that on 17/02/2022, the final arguments of plaintiffs
were heard. Even the written arguments were also submitted by plaintiffs.
However, at that time, respondents filed an application under Order 9 Rule 7
of C.P.C. and the Trial Court instead of fixing the case for delivery of
judgment, fixed the case for arguments on the said application. It is
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submitted that since, an application under Order 9 Rule 7 of C.P.C. was filed
after the final arguments were advanced by plaintiffs/petitioners, therefore,
an application filed under Order 9 Rule 7 of C.P.C. was not maintainable.
3. Per contra, the petition is vehemently opposed by counsel for
respondents. It is submitted that the case was never fixed for delivery of
judgment and immediately after the final arguments were advanced by
plaintiffs, an application under Order 9 Rule 7 of C.P.C. was moved and,
therefore, it cannot be said that the application was not maintainable.
4. Heard the learned counsel for the parties.
5. Order 9 Rule 7 of C.P.C. reads as under:-
"7. Procedure where defendant appears on day of adjourned
hearing and assigns good cause for previous non-appearance.-
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."
6. From the plain reading of Rule 7 of C.P.C. it is clear that when the
defendants against whom ex-parte proceedings have been recorded appears
at or before such hearing and assigns good cause for his previous non-
appearance, upon such terms as the Court can hear him in answer to the suit
as if he had appeared on the day fixed for his appearance. If the order-sheet
dated 17/02/2022 recorded by the Trial Court is considered (this order-sheet
has not been placed on record by plaintiffs, but it was supplied by counsel for
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respondents No.1 to 5 and the same is taken on record), then it is clear that
immediately, on the day when the final arguments were advanced by
plaintiffs, defendants had filed an application under Order 9 Rule 7 of C.P.C.
The Trial Court never fixed the case for delivery of judgment and, therefore,
it cannot be said that the case was not fixed for hearing on the day when the
application under Order 9 Rule 7 of C.P.C. was filed.
7. Under these circumstances, this Court is of considered opinion that
the application filed under Order 9 Rule 7 of C.P.C. was maintainable and
has been rightly entertained by Trial Court.
8. So far as the discretion exercised by the Trial Court is concerned,
this Court does not find any good reason to interfere with the same.
9. From the order-sheets of this case, it is clear that further proceedings
were stayed by this Court by order dated 24/08/2022 and three years have
passed, and the proceedings have remained under suspended animation at the
behest of plaintiffs. Under these circumstances, the order dated 13/07/2022
passed by the trial Court requires modification.
10. Accordingly, it is directed that defendants shall keep all their
witnesses present before the Trial Court on 18/09/2025.
11. It is made clear that all the witnesses of defendants who appears
before the Trial Court shall be examined. The case shall not be adjourned for
examination of defendants witnesses. If a defendant witness is present and in
case if he is not examined on account of paucity of time, then the Trial Court
shall fix the case for next date for examination of such witness, but it is made
clear that only those witnesses shall be examined who will be present before
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the Trial Court on 18/09/2025. No other witness, if he is not kept present
before the Trial Court shall not be examined by Trial Court on 18/09/2025.
Thereafter, the matter shall be heard finally.
12. With aforesaid observation, this miscellaneous petition is finally
disposed of.
(G. S. AHLUWALIA)
JUDGE
PjS/-
