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Krishna Wanti Vs. Sharma and Sons - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 341-D of 1954
Judge
Reported inAIR1957P& H63
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 7
AppellantKrishna Wanti
RespondentSharma and Sons
Appellant Advocate R.S. Narula and; Daljit Singh, Advs.
Respondent Advocate Lal Chand, Adv.
DispositionRevision allowed
Excerpt:
.....court and the sub judge passed the order i have quoted above and by which he allowed the defendant to put in her objections against the setting aside of the abatement of the suit......in court and put in an application under order 9, rule 7. civil p. c., praying that the ex parte proceedings be set aside. at that stage the only proceedings that had taken place ex parte were the proceedings relating to abatement. notice of this application was sent to the tenant and the matter came up before the court on 14-4-1954. the order passed on that date may be translated as follows:'reply to the application has been filed counsel lor the plaintiff has no objection but he prays for costs. ex parte proceedings are set aside. respondent no. 1 should pay rs. 10/-costs. the respondent should put in a reply to the application for the cancellation of abatement on 19-4-1954.'on 19-4-1954 the plaintiff's counsel accepted the rs. 10/- under protest but objected that the matter of.....
Judgment:
ORDER

Khosla, J.

1. This is a revision petition against an order passed in the course of a dispute relating to tenancy. The facts are briefly as follows: The tenant in this case who is the respondent before me, brought a suit for the fixation of standard rent on 4-12-1952. The application was subsequently amended to bring it under the new Act of 1952 and the landlord Ram Singh filed his written statement. Issues were framed on merits but before evidence could be recorded Ram Singh died.

His death took place on 1-9-1953 and after the period of 90 days prescribed by the statute had passed the tenant applied to bring the legal representatives of the defendant on record under Order 22, Rule 4, Civil P. C. The representatives appeared In Court on 27-1-1954 and raised objections on the ground that the application was barred by time and the suit had in the meantime abated. The next day the tenant made an application under Order 22, Rule 9, Civil P. C., for setting aside the abatement of the suit.

Notice of this application was issued to the legal representatives of Ram Singh and when the matter came up on 22-3-1954 none of them were present. The Court then passed an order adjourning the case for the plaintiff's evidence which he proposed to hear ex parte. A little later the same day the statement of the tenant was recorded and the abatement of the suit was set aside by an order passed ex parte.

2. Later the same day the petitioner appeared in Court and put In an application under Order 9, Rule 7. Civil P. C., praying that the ex parte proceedings be set aside. At that stage the only proceedings that had taken place ex parte were the proceedings relating to abatement. Notice of this application was sent to the tenant and the matter came up before the Court on 14-4-1954. The order passed on that date may be translated as follows:

'Reply to the application has been filed Counsel lor the plaintiff has no objection but he prays for costs. Ex parte proceedings are set aside. Respondent No. 1 should pay Rs. 10/-costs. The respondent should put in a reply to the application for the cancellation of abatement on 19-4-1954.'

On 19-4-1954 the plaintiff's counsel accepted the Rs. 10/- under protest but objected that the matter of abatement could not be reopened. This objection was upheld and the Sub Judge passed the order under revision.

3. The learned Sub Judge appears to nave taken a somewhat curious view of the matter, He says--

'As the defendant had applied only for the setting aside of the ex parte proceedings In respect of the original application for fixation of standard rent and not for setting aside the ex parte order setting aside abatement, the ex parte order setting aside the abatement cannot be set aside.'

This order seems to reveal a complete misapprehension of what ex parte proceedings are and how and in what circumstances they can be set aside. It is, therefore, necessary to deal with this point in some detail. According to law every suit must be heard In the presence of both parties and, therefore, notice of fresh institutions is always sent to the other party. The Court, however cannot compel anyone's attendance and all that is necessary under law is that a party against whom any action is to be taken should have notice of the proceedings against him.

If due service of the notice has been effected the Court can proceed to hear the matter even in the absence of the party concerned. For Instance, when a plaint is filed in Court summons are issued to the defendant. The defendant may choose to appear or not. He may choose to appear on one hearing and then absent himself.

It is not the duty of the Court to wait for the defendant and adjourn a case to enable him to appear, as long as he has been duly served and knows the nature of the proceedings against him. If the defendant chooses to absent himself the Court will proceed ex parte. This means that the proceedings can be taken to their rightful conclusion in the absence of the defendant. The defendant can, however, at any time appear and continue the proceedings without permission of the Court, but in that case he cannot reopen or object to the proceedings that had already taken place in his absence. He will have to accept all orders passed whether to his detriment or not during his absence.

He can, however, make an application to the Court for setting aside these orders on showing that there was 'good cause for his previous non-appearance'. The Court may then, if satisfied, direct that he 'be heard in answer to the suit as if he had appeared on the day fixed for his Appearance' (Order 9, Rule 7, Civil P. C.) But where the absenting party does not wish to challenge any orders passed during his absence he need not make an application under Order 9, Rule 7 and may continue to appear and take part in the proceedings as a matter of right. In that case, however, he will be bound by any adverse orders passed to his detriment on the days when he did not appear in court. A single non-appearance of a party does not disentitle him from appearing subsequently.

4. The petitioner in the present case was absent on 22-3-1954.. On that day two orders were passed. The first order was that the plaintiff should produce his evidence on 14-4-1954. The second order was that the abatement of the suit be set aside. Now, the second order was the only order which acted to the detriment of the defendant and this was the only order which could be said to be ex parte proceedings.

The other order requiring the plaintiff to produce his evidence at a future date was not in the nature of ex parte proceedings and if there had been no question of abatement the defendant could without obtaining permission of the Court and without making an application under Order 9, Rule ' 7, Civil P. C., have appeared in court on 14-4-1954 and contested the suit, but in that case she could not have asked the Court for a further adjournment to produce her witnesses or to issue process to compel her witnesses to attend Court because she should have done that on 22-3-1954, the day when she was absent.

From this it follows that when she made an application under Order 9, Rule 7, Civil P. C., praying that the ex parte proceedings against her be set aside she could only have referred to the proceedings which related to the matter of abatement. There were no other ex parte proceedings which needed setting aside. This was clearly understood by the Court and the Sub Judge passed the order I have quoted above and by which he allowed the defendant to put in her objections against the setting aside of the abatement of the suit.

The subsequent order was based upon an entire misconception of the prayer made by the defendant. This order amounted to a review of the previous order of 14-4-1954 and there were no valid grounds for reviewing It.

5. It seems to me that when the matter came up before the Court on 22-3-19S4 the petitioner was a little late in reaching Court and the order setting aside the abatement was passed in the earlier part of the day. Her allegation that her absence was neither wilful nor due to negligence was accepted by the Court and she was allowed to put in objections against the application for setting aside the abatement.

That being so, this revision petition must be allowed and the order of the lower Court set aside. The petitioner will be given an opportunity to file objections against the application to set aside the abatement and these objections will be disposed of on merits.

6. The connected matter (Civil Miscellaneous No. 607-D of 1956) regarding the stay of the second suit for ejectment filed by the landlord now becomes infructuous and is dismissed.

7. Parties are directed to appear before the lower Court in both the cases on 2-1-1957.

8. There will be no order as to costs in thisCourt.


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