G.K. Misra, J.
1. It is not necessary to state the detailed facts regarding the respective cases of the parties. The plaintiff's suit was for recovery of the Jeep and the new spare parts supplied for repairs and for other reliefs. On 14-11-67 the defendant filed written statement denying his liability. On 15-4-68 the suit was fixed for hearing in the Court of the First Additional Subordinate Judge, Cuttack. The plaintiff applied for time which was rejected. He accordingly got ready and filed hazira. The defendant did not appear despite repeated calls. He was set ex parte and the suit was heard ex parte. One of the employees of the municipality was examined in support of the plaintiff's case. The suit was posted to 16-4-68 for judgment.
On 16-4-68 the judgment was not pronounced as the Judge was absent on leave and the suit was adjourned to 17-4-68 for judgment. On that day the defendant filed an application for recalling the ex parte order passed on 15-4-68 on the allegation that the defendant was under a confusion that there was morning Court and after coming to Court he returned back home to come again at 11 A. M. but at home he found his child severally ailing and there was sufficient cause for his absence on 15-4-68.
A Misc. Case was started and was fixed for hearing to 29-4-68. No evidence was adduced on either side. The misc. case was however allowed on contest subject to payment of Rs. 50/- by the defendant to the plaintiff by 11-5-68 failing which the application for restoration was directed to be rejected. It was ordered that if the amount was paid the suit would continue from the stage which meant that P. W. 1 would be further cross-examined. It is stated that the costs have been deposited. Without withdrawing the same the plaintiff has filed this civil revision against the impugned order.
2. Mr. Misra for the plaintiff contends that the order passed by the learned Subordinate Judge is without jurisdiction and is contrary to the decision reported in AIR 1964 SC 993, Arjun Singh v. Mohindra Kumar.
3. Order 9, Rule 6 C. P. C., so far as relevant, stands thus: --
'6. (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-
(a) If it is proved that the summons was duly served, the Court may proceed ex parte; Admittedly in this case summons was served. The defendant did not appear on the day fixed for hearing. The suit was therefore, rightly ordered to proceed ex parte under Rule 6 (1) (a). Rule 7 lays down:-- 'Where the Court has 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 expression 'at or before such hearing' was construed in the aforesaid Supreme Court decision. It was held that if the hearing is wholly concluded then there is no scope for making an application for further hearing to be given to the defendant, because it would run counter to the expression itself. In this case the hearing was concluded. The only witness examined for the plaintiff was P. W. 1. So by 17-4-68 there was no date for further hearing. It was only fixed for delivery of judgment and there was no scope for allowing the defendant to be heard.
It is to be further noted that the rule imposed a further condition that the defendant must assign good cause for his previous non-appearance. As would appear from the order sheet dated 29-4-68 the defendant chose not to adduce any evidence. It is difficult to understand how the learned Judge held that good cause was shown even though no evidence was adduced. The learned Judge even did not indicate in his judgment that there was any good cause.
In the aforesaid Supreme Court decision their Lordships observed thus:
'If, therefore, the hearing was completed and the suit was not adjourned for hearing,' Order IX, Rule 7 could have no application and the matter would stand at the stage of Order IX, Rule 6 to be followed up by the passing of an ex parte decree making Rule 13 the only provision in order IX applicable. If this were the correct position, it would automatically follow that the learned Civil Judge would have no jurisdiction to entertain the application dated May 31, 1958 purporting to be under Order IX, Rule 7 or pass any order thereon on the merits.'
Thus allowing an application for restoration under Order 9, Rule 7 when hearing is already over is an order without jurisdiction.
4. Their Lordships further observed that to the cases of such type. Section 151, C. P. C. has no application. The observation runs thus:--
'Even in such a case he is not penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. Thus every contingency which is likely to happen in the trial vis-a-vis the non-appearance of the defendant at the hearing of a suit has been provided for and Order IX, Rule 7, and Order IX, Rule 13 between them exhaust the whole gamut of situations that might arise during the course of the trial.'
5. The learned Judge therefore, acted without jurisdiction in allowing the application for restoration and in allowing the defendant to take part in hearing. He ought to have delivered the ex parte -judgment.
6. Mr. Deo however contends that once the learned Judge exercised his jurisdiction and substantial justice has been done to the parties, the High Court should not interfere in revision to set aside such an order. It is well known that exercise of the revisional jurisdiction is discretionary. The High Court is not bound to interfere in all cases where the Subordinate Courts act contrary to law or in illegal exercise of their jurisdiction. In cases where substantial justice has been done the High Court might not interfere in the exercise of discretionary jurisdiction.
The only point for consideration is whether in the facts and circumstances of the case the High Court would refuse to exercise jurisdiction. As has already been stated, the order passed by the learned Judge is without jurisdiction. The order did not take into consideration whether the defendant really had sufficient cause for his absence. Besides, after the ex parte decree is passed the defendant would have the further opportunity of filing an application under Order 9, Rule 13, C. P. C. and it would be open to him to establish there whether there was sufficient cause for his absence on the date of hearing. There is therefore, no injustice done to the defendant.
Mr. Deo cited AIR 1926 Pat 218, Ram Golam v. Chintaman and AIR 1962 Punj 168, Firm New Afghan v. Firm Sadhu Singh in support of his contention that the High Court should not interfere in exercise of revisional powers. As I have already stated, those decisions merely speak of the elementary position which is not disputed. They were not cases on the point now in issue. The only case which has any direct bearing is Civil Revn. No. 102 of 1967, D/- 26-6-1968 (Orissa), Manmohan Patnaik v. State of Orissa. This case is also distinguishable; There the defendant asked for an opportunity to take part in hearing before the hearing was over. P. W. 1 was under cross-examination. Order 9, Rule 7 does not constitute a bar to such cases as has been explained in the aforesaid Supreme Court decision.
7. In the result, the impugned order is set aside and the Civil Revision isallowed with costs. Hearing FeeRs. 50/-.