Skip to content


East India Cotton Manufacturing Co. Ltd. Vs. S.P. Gupta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 167 of 1984
Judge
Reported in28(1985)DLT22; 1985(8)DRJ348; 1985RLR292
ActsCode of Civil Procedure (CPC), 1908 - Order 9, Rule 7
AppellantEast India Cotton Manufacturing Co. Ltd.
RespondentS.P. Gupta
Advocates: Jaswant Singh,; M.S. Siddique and; S.P. Chug, Advs
Cases ReferredState of Punjab v. Sri R. P. Kapoor and
Excerpt:
.....7 would have no application. under this rule if an application is made on any date fixed for ex-parte hearing of the suit showing good cause for his non-appearance on previous date of dates, the application would be in accordance with order 9 rule 7 of the code. if the applicant establishes good cause for his previous non-appearance the court would have jurisdiction to set aside the order proceeding ex-parte. election tribunal, kotah and another, [1955]2scr1 it has been held that :if at an adjourned hearing the defendant appears and shows good cause for his 'previous non-appearance. ' this cannot be read to mean that he can not be allowed to appear at all if he does not show good cause. if a party does appear on 'the day to which the hearing of the suit is adjourned',he can not be..........ex-parte such as for evidence etc. and it is further adjourned for arguments it would mean that ex-parte hearing of the suit was not completed and the hearing of the suit ex-parte was adjourned. under this rule if an application is made on any date fixed for ex-parte hearing of the suit showing good cause for his non-appearance on previous date of dates, the application would be in accordance with order 9 rule 7 of the code. if the applicant establishes good cause for his previous non-appearance the court would have jurisdiction to set aside the order proceeding ex-parte. (7) in sangram singh v. election tribunal, kotah and another, : [1955]2scr1 it has been held that :- 'if at an adjourned hearing the defendant appears and shows good cause for his 'previous non-appearance.' he can be.....
Judgment:

Sultan Singh, J.

(1) This revision under Section 115 of the Code of Civil Procedure (for Short 'the Code') is directed against the order dated 7th December, 1983 of the Commercial Sub Judge, Delhi dismissing the petitioner's application under Order 9 Rule 7 of the Code.

(2) Briefly the facts are: That Mr. S.P. Gupta plaintiff respondent on 18th October, 1982 filed a suit for recovery of Rs. 22,622.70 on account of price of goods against the defendant-petitioner. Summons of the suit were issued for 19th April, 1983. The petitioner was served with the summons on 3rd February, 1983 but there was no appearance on its behalf on 19th April, 1984. The trial court ordered the defendant to be proceeded ex-parte and fixed 17th August, 1983 for recording ex-parte evidence which was recorded and the suit was adjourned for hearing arguments and orders to 30th September, 1983.

(3) The petitioner-defendant on 30th September, 1983 fifed an application to set aside the order proceeding ex-parte supported by an affidavit of the Director of the defendant company. The petitioner in its application has alleged that it was served on 3rd February, 1983 with the summons and a copy of the plaint but the said two papers were got mixed up and misplaced with other papers and, thereforee, no appearance could be made in the court on 19th April, 1983, that about a week before i.e. on 23rd September, 1983, its newly appointed Law Officer in the course of his searches found the summons and the copy of the plaint which were handed over to the counsel Who on enquiries came to know that the defendant had been proceeded exparte and the suit was fixed for hearing ex-parte arguments on 30th September, 1983. The petitioner submitted that its non-appearance was unintentional, bona fide and for reasons beyond its control and there was sufficient cause for setting aside the ex-parte proceeding.

(4) The plaintiff-respondent filed his reply dated 6th December, 1983 denying the allegations of the defendant alleging that the story put forward Was a concocted one and its absence was deliberate, that the defendant was aware of the proceedings, that no hearing was left and as such there was no ground to set aside ex-parte proceeding. The reply is not supported by any affidavit. The trial court by the impugned order dated 7th December, 1983 dismissed the application holding that no good cause was shown, that no affidavit of the concerned Law Officer was filed, that each day's delay was not explained and the application was filed after eight months. The trial court however allowed the petitioner to participate in future proceeding and fixed the case for arguments and on 7th January, 1984 passed a decree against the petitioner-defendant. The petitioner on 2nd February, 1984 filed an application under Order 9 Rule 13 of the Code and also an application for stay of execution. The trial court by order dated 3rd February, 1984 directed the defendant-judgment debtor to deposit the decretal amount within a week and adjourned the case to 2nd March, 1984 for reply and arguments. It appears that none appeared for the applicant on 2nd March, 1984 and the decretal amount was also not deposited. The court thereforee dismissed the stay application and consigned the file to record room. No order on the application under Order 9 Rule 13 of the Code appears to have been passed by the trial court.

(5) The petitioner filed this revision on 14th February, 1984. The execution of the decree dated 7th January, 1984 was stayed on its furnishing bank guarantee for the decretal amount to the satisfaction of the executing court. Learned counsel for the petitioner submits that the application under Order 9 Rule 7 of the Code was dismissed illegally by the trial court that there was good cause and no opportunity was given to substantiate the allegations contained in the application, that the application was filed within lime in accordance with Order 9 Rule 7 of the code. The learned counsel for the respondent-plaintiff, however, submits that the revision is not maintainable as after the passing of the impugned order the trial court has also passed a decree, that the petitioner's application under Order 9 Rule 13 of the Code has been dismissed, that there was no good cause and the application was barred by time.

(6) The questions for decision are whether the application under Order 9 Rule 7 of the Code was within time and it discloses good cause for setting aside the Order proceeding ex-parte. Order 9 Rule 7 of the Code reads as under:-

'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 words 'Where the Court has adjourned the hearing of the suit exparte', means that there is to be hearing on the date to which the suit stands adjourned. If the 'Hearing' of the suit has been completed and the Court has adjourned the suit merely for the purpose of pronouncing judgment, there is clearly no adjournment of 'the hearing' of the suit and in such circumstances Order 9 Rule 7 would have no application. But if the suit has been adjourned for hearing ex-parte such as for evidence etc. and it is further adjourned for arguments it would mean that ex-parte hearing of the suit was not completed and the hearing of the suit ex-parte was adjourned. Under this rule if an application is made on any date fixed for ex-parte hearing of the suit showing good cause for his non-appearance on previous date of dates, the application would be in accordance with Order 9 Rule 7 of the Code. If the applicant establishes good cause for his previous non-appearance the Court would have jurisdiction to set aside the order proceeding ex-parte.

(7) In Sangram Singh v. Election Tribunal, Kotah and another, : [1955]2SCR1 it has been held that :-

'IF at an adjourned hearing the defendant appears and shows good cause for his 'previous non-appearance.' He can be heard in answer to the suit as if he had appeared on the day fixed for his appearance.' This cannot be read to mean that he can not be allowed to appear at all if he does not show good cause. All it means is that he can not be relegated to the position he would have occupied if he had appeared. If a party does appear on 'the day to which the hearing of the suit is adjourned', he can not be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing',

Further, if the defendant wants to put in written statement he can do so only if he shows good cause for his previous 'absence. In Arjun Singh v. Mohindera Kumar and others, : [1964]5SCR946 (1004) it has been observed as follows :

'ON the terms of Order 9 Rule 7 if the defendant appears on such adjourned date and satisfies the court by showing good cause for his non-appearance on the previous day or days he might have the earlier proceedings recalled and have the suit heard in his presence. On the. other hand, he might fail in showing good cause. Even in such a case he is not penalised the sense of being forbidden to take part in the further proceedings of the suit or what- ever might still remain of the trial, only he can not claim to be relegated to the position that he occupied at the commencement of the trial'.

(8) The law laid down by the Supreme Court makes it clear that if the defendant shows good cause for his non-appearance on previous date or dates of ex-parte hearing of the suit, he can be allowed to file the written statement and contest the suit and if no good cause is shown he can be allowed to take part in further proceedings of the suit. The ex-parte hearing of the suit may be on one day or more than one day. The application under Order 9 Rule 7 of the Code can be filed on the date fixed for the hearing of the suit ex-parte, disclosing good cause for his absence on previous dates of hearing; In the instant case the defendant was proceeded ex-pane on 19-4-l983 and ex-pane hearing of the suit for recording evidence was adjourned to 17th August, 1983 on which date evidence was recorded but the hearing of the suit was not completed. It was adjourned for arguments to 30th September, 1983. Hearing of arguments in the suit is also hearing of the suit ex-parte. Thus the petitioner who filed the application for setting aside the order proceeding ex-parte has a right to show good cause for his non-appearance on 19th, April, 1983 and 17th August, 1983 and he would be entitled to file the written statement and contest the suit. In other words he had a right to file an application Under Order 9 Rule 7 of the Code on 30th September, 1983, which was the date fixed for hearing i.e. the arguments in the suit. The question, however, is whether the petitioner has shown good cause.

(9) The petitioner has alleged that it was served on 3rd February, 1983 but the summons and copy of the plaint were got mixed up and misplaced in other papers and that in the course of searches the Law Officer of the defendant company found the summons and the copy of the plaint a week before the date of filing the application i.e..the papers were found by the defendant on 23rd September, 1983, that the papers were handed over to the counsel who on enquires came to know that the suit for hearing of ex-parte arguments was fixed for 30th September, 1983. These allegations are supported by an affidavit dated 30th September, 1983 of Mr. N.K. Lohia. Director of Defendant Company. There is no counter affidavit of the plaintiff rebutting the allegations of the petitioner. In, the absence of counter affidavit allegations contained in the affidavit of the petitioner were sufficient to show that there was good cause for non-appearance on various dates prior to 23rd September, 1983. The petitioner is a limited company. It is admitted that the defendant was served on 3rd February, 1984. Summons were received by a clerk of the defendant company. It might be that the clerk misplaced the summons and the copy of the plaint and the same were mixed with other papers. It is only on 23rd September, 1983 that the papers were found out by the Law Officer of the defendant company. In, the absence of counter affidavit there is no ground for rejecting the version of the defendant company. The trial court thus. ought to have accepted the petitioner's application for setting aside the order proceeding ex-parte against it. It is admitted that no evidence was recorded in respect of the petitioner's application. No affidavit on behalf of respondent was filed before the trial court. If the trial court was not satisfied merely by the affidavit of the petitioner company it ought to have given an opportunity to the petitioner to substantiate the allegations in support of the good cause for its absence on the first date of hearing and the subsequent date. Section 141 of the code states that the procedure provided in the Code in regard to suits, is applicable to all proceedings in any court of civil jurisdiction. Application under Order 9 Rule 7 of the Code is a proceeding and as such the procedure provided by the Code in regard to suits is applicable to an application under Order 9 Rule 7 of the Code. There was a disputed question of fact; whether the summons and the copy of the plaint were misplaced as alleged and thereforee the defendant could not appear on the date of hearing. In other words an issue of fact arises to be decided by the court.

(10) In Major S.S. Khanna v. Brig. F.J. Dillon, : [1964]4SCR409 it has been observed that, 'the contentions of facts had to be decided on evidence'. In the instant case, however, as there was no counter affidavit, I am of the opinion that it was not necessary to record evidence and there was good cause for the absence of the petitioner on 19th April, 1983 and 17th August, 1983. The summons and copy of the plaint were misplaced and were available to the defendant company on 23rd September, 1983 only. The affidavit of the Director was filed which was sufficient.

(11) Order 9 Rule 7 of the Code is a procedural law. It provides that on showing good cause for his previous non-appearance the defendant can be allowed to be heard in answer to the suit. It is well known that rules of procedure are designed to advance justice and should be so interpreted as not to make them penal statute for punishing erring parties. The words, 'good cause' in this rule should be liberally construed. In my opinion the trial court interpreted the allegations of fact and the law contained in Order 9 Rule 7 of the Code with a view to punish the defendant company on account of the mistake of its clerk who had misplaced the summons and plaint with other papers. No harm or prejudice would be caused to the plaintiff. The suit was at the initial stage. He can be compensated by costs but the defendant a limited company on account of mistake of its clerk can not be refused permanently to defend the suit.

(12) Learned counsel for the plaintiff submits that the decree was passed on 7th January, 1984 and the petitioner's application under Order 9 Rule 13 of the Code was dismissed. No order on record dismissing the petitioner's application under Order 9 Rule 13 of the Code has been brought to my notice by the learned counsel for the plaintiff-respondent. He submits that the application was dismissed on 2nd March, 1984. From the record I find that only the stay application was dismissed on account of non-deposit of the decretal amount and the proceedings were consigned to record room. When the proceedings were consigned it would mean that the proceedings have come to an end but there is no order dismissing the petitioner's application, under Order 9 Rule 13 of the Code.

(13) The learned counsel submits that after the passing of the decree, the application under Order 9 Rule 7 of the Code can not be accepted and the Revision is not maintainable. I do not agree. If the trial court had acted illegally in the exercise of its jurisdiction in dismissing the application under Order 9 Rule 7 of the Code, it is for this Court to exercise power under Section 115 of the Code and quash the order. The decree in the instant case is based on the order dated 19th April, 1983 proceeding ex-parte against the defendant. If the orders of 19th April, 1983 and 17th August, 1983 are set aside the decree passed subsequently is also liable to be set aside. In Siri Krishan Bhardwaj v. Manohar Lal Gupta and another : AIR1977Delhi226 , the Division Bench has observed as under :

'WHEN a subsequent order, even if it be a decree is a consequential order to an earlier order and the earlier order is set aside the latter order must also fall and directions to that effect have to be given. thereforee, if the impugned order is reversed or modified the consequential order or decree will also have to be modified or directions will have to be given that the same is of no effect'.

It was also held that Revision against the interlocutory order was maintainable although a decree had been passed.

(14) The learned counsel for the plaintiff-respondent also submits that the revision is not maintainable as there was no failure of justice. I do not agree. The trial court acted illegally in exercise of its jurisdiction. The Court refused to exercise jurisdiction vested in it by law. If the petitioner-defendant is not allowed to contest the suit in the circumstances alleged, it would mean mis-carriage of justice and it would suffer irreparable injury. The learned counsel for the respondent has referred to T.C. Malleshappa v. Firm of Sha veerchand Pratapmal by ifs proprietor Amichand and another, Air 1965 Mys 300 the State of Punjab v. Sri R. P. Kapoor and others, : AIR1976All355 , Brij Gopal Mathur and another v. Krishan Gopal Mathur and others, : AIR1973SC1096 and Raj Kumar Soni v. M/s. Mohan Meakin Breweries Ltd., : AIR1979All370 . It is not necessary to discuss all these authorities as they have no bearing on the facts of the present case.

(15) The revision is accepted setting aside the impugned order proceeding ex-parte against the defendant on payment of Rs. 100.00 as costs. The petitioner-defendant shall file its written statement and pay costs before the trial court. As a consequence the decree dated 7th January, 1984 against the defendant is also set aside. No order as to costs in this revision. Parties are directed to appear before the Trial Court on 18-3-1985.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //