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
Page 1 / 6
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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
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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.
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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
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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.
07.11.2024
Index : Yes / No
Internet: Yes
Speaking/non speaking order
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N. SATHISH KUMAR, J.
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07.11.2024
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