WPMS/1376/2022
2022 Latest Caselaw 1927 UK

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                               WPMS No. 1376 of 2022
                               Hon'ble Manoj Kumar Tiwari, J.

Heard Mr. Sandeep Kothari, Advocate for the petitioners.

Petitioners are plaintiffs in Original Suit No. 47 of 2021, which is pending before Additional Civil Judge (Senior Division), New Tehri. They have challenged an order passed by learned trial Court on 21.04.2022, whereby defendants' application under Order 9 Rule 7 C.P.C. has been allowed.

The suit was filed on 04.09.2021, on which notice was issued to the defendants. Due to non-appearance of the defendants despite notice, learned trial Court, on 30.11.2021, ordered for proceeding ex-parte against them. Defendants moved an application under Order 9 Rule 7 C.P.C. stating that defendant no. 1 is an old woman, who due to ill health and bad weather could not appear before the Court on 30.11.2021, therefore, order for proceeding ex-parte against the defendants was passed, which may be set aside and she may be permitted to file written statement. An objection was filed by the petitioners contending that no good cause has been shown by defendant no. 1 in her application under Order 9 Rule 7 C.P.C. Learned trial Court allowed the application filed by the defendant no. 1 vide order dated 21.04.2022, which is impugned herein. Learned counsel for the petitioners submits that learned trial Court erred in allowing the application filed by the defendants, as no good cause was shown by them for their non-appearance on the previous date of hearing.

Order 9 Rule 7 C.P.C. covers the case of a defendant, who did not appear at all on the first hearing date and suit was adjourned after declaring him ex- parte, as also a defendant who absented after filing written statement. In both cases, the ex-parte order only covered the period during which the defendant was actually absent and it did not act as a bar to his resuming appearance in the suit at the stage, in which it then was, if he appeared subsequently and wanted to put forward his evidence as held by Hon'ble Madras High Court in the case of Venkatasubbiah Vs. Lakshmi, reported in AIR 1925 Madras 1274. The rule is applicable if the defendant wants the Court to retrace its steps and to be allowed to file written statement. But if the defendant wants to proceed from the stage already reached, he will have an absolute right without obtaining the court's permission to take part in the proceeding. Thus, Rule 7 cannot be read to mean that defendant cannot be allowed to appear at all if he does not show good cause. All it means is that he cannot be relegated to the position he would have occupied, if he had appeared. He cannot be stopped from participating in the proceeding simply because he did not appear in the first or some other hearing. He will have to show good cause for his previous absence, only if he desires to be relegated back to the position, in which he would have been put, if he had appeared at the pervious hearings, so that the proceedings in his absence could be reopened.

In the case of Kailash v. Nanhku, reported in (2005) 4 SCC 480, Hon'ble Supreme Court has held that, object of prescribing procedure is to advance the cause of justice and in an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Paragraph nos. 29, 30 & 31 of the said judgment are extracted below:-

"29.In the State of Punjab v. Shamlal Murari, the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that: (SCC p. 720)

"Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice."

In Ghanshyam Dass v. Dominion of India the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle.

30. It is also to be noted that though the power of the court under the proviso appended to Rule 1 Order 8 is circumscribed by the words "shall not be later than ninety days" but the consequences flowing from non-extension of time are not specifically provided for though they may be read in by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form.

31. In Sangram Singh v. Election Tribunal, Kotah this Court highlighted three principles while interpreting any portion of CPC. They are:

(i) A code of procedure must be regarded as such. It is "procedure", something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to "both" sides) lest the very means designed for the furtherance of justice be used to frustrate it. (SCR pp. 8-9)

(ii) There must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. (SCR p. 9)

(iii) No forms or procedure should ever be permitted to exclude the presentation of the litigant's defence unless there be an express provision to the contrary. (SCR p. 9)"

Thus, Courts should be liberal in construing Order 9 Rule 7 C.P.C. and should not take a stringent view of the defendant's absence. What is required under Order 9 Rule 7 C.P.C. is for the applicant to show a 'good cause' for non-appearance and not 'sufficient cause', which is the requirement in the cases covered under Order 9 Rule 13 C.P.C. The expression 'good cause' and 'sufficient cause' cannot be used interchangeably treating them to be carrying the same meaning. However, if there are mala fides shown or proved, the Court would be competent to reject the application for setting aside the order proceeding ex-parte.

In the present case, the application under Order 9 Rule 7 C.P.C. was filed within 20 days of the order for proceeding ex-parte. Learned trial Court has accepted the cause shown by the defendant for their non- appearance as good cause and observed that the suit is in the primary stage, which deserves to be decided on merits. This Court concurs with the view taken by learned trial Court.

Even otherwise also, learned trial Court has exercised its discretion by allowing the application filed by the defendants. This Court is not inclined to interfere with the exercise of discretion by learned trial Court, especially when there is no illegality or perversity in the impugned order passed by learned trial Court.

Thus, there is no scope for interference with the impugned order in exercise of power under Article 227 of the Constitution.

Accordingly, the writ petition fails and is dismissed.

(Manoj Kumar Tiwari, J.) 01.07.2022 Arpan