CR 92 of 2012 -1 v. Harbhagwan Dass & Ors.

CORAM: HON'BLE MR. JUSTICE T.P.S.MANN Present : Mr Namit Gautam, Advocate for the petitioner. Mr Sunil Chadha, Advocate for contesting respondent No.1. T.P.S. MANN, J. The petitioner, who is one of the defendants in the suit, has filed the present revision under Article 227 of the Constitution of India for challenging the order dated 12.8.2011 (Annexure P-1) passed by the trial Court to the extent of allowing the petitioner to join the proceedings in the suit from that stage only and not from the date when she was proceeded exparte. It is not in dispute that the petitioner was proceeded exparte in the suit on 3.5.2007 as she stood served for that date and did not put in appearance although, according to her, no summons, either under registered AD covers or through the Court process, were served upon her and plaintiff/respondent No.1 had managed false reports regarding her service CR 92 of 2012 -2- and only a week before she filed the application on 12.10.2010 under Order IX Rule 7 CPC that she learnt about the pendency of the suit when the plaintiff started proclaiming that he would be granted a decree of the property in his name and become its owner.

The aforementioned application filed by the petitioner under Order IX Rule 7 CPC stands allowed by the trial Court by setting aside the exparte proceedings, subject to costs but with a rider that the petitioner would join the proceedings from that stage only and not from 3.5.2007 when she was proceeded against exparte. In Vijay Kumar Madan vs R.N.Gupta Technical Education Society, (2002) 5 SCC 30, the Hon'ble Supreme Court has held that once the defendant is proceeded against exparte, he is entitled to appear and participate in the subsequent proceedings as of right. However, when an application under Order IX Rule 7 CPC is filed by him praying therein that the proceedings be relegated back and reopened from the date when he became exparte, the Court should allow his prayer but cannot pass an order which would have the effect of placing him in a situation more worse off than what he would have been if he had not applied under Order IX Rule 7 CPC. The relevant observations made in the aforementioned judgment are as under: “It is settled with the decision of this Court in Arjun Singh vs Mohinder Kumar & Ors., AIR 1964 SC 993, that on an adjourned hearing, in spite of the Court having proceeded ex parte earlier the defendant is entitled to appear and participate in the subsequent proceedings as of right.

An application under Rule 7 is required to be made only if the defendant wishes the proceedings to be relegated back and re-open the proceedings from the date wherefrom they CR 92 of 2012 -3- became exparte so as to convert the exparte hearing into bi- parte. While exercising power of putting the defendant on terms under Rule 7 the Court cannot pass an order which would have the effect of placing the defendant in a situation more worse off than what he would have been if he had not applied under Rule 7. So also the conditions for taking benefit of the order should not be such as would have the effect of decreeing the suit itself. Similarly, the Court may not in the garb of exercising power of placing upon terms make an order which probably the Court may not have made in the suit itself. As pointed out in the case of Aruan Singh (supra), the purpose of Rule 7 in its essence is to ensure the orderly conduct of the proceedings by penalizing improper dilatoriness calculated merely to prolong the litigation.” In the case in hand, the petitioner while filing an application under Order IX Rule 7 CPC had specifically prayed for setting aside of the exparte proceedings and for the decision of the case on merits.

In such a situation, when the trial Court, in the interest of justice, allowed the application filed by the petitioner by setting aside the expare proceedings, it could not have directed the petitioner to join the proceedings from that stage only. Ends of justice require that the petitioner be permitted to join the proceedings from 3.5.2007 itself when she was proceeded against exparte. The counsel for the petitioner has submitted that the petitioner intends to file written statement. However, she will not insist for recasting/reframing of issues but she be allowed to cross-examine PW-1 for which she would ask for only one opportunity. After hearing counsel for the parties and keeping in view the aforementioned facts and circumstances, I allow the present revision and modify the impugned order by allowing the petitioner to join the CR 92 of 2012 -4- proceedings from 3.5.2007. The petitioner shall be granted one opportunity for filing her written statement and, thereafter, one opportunity for cross- examining PW-1. This order shall, however, be subject to the petitioner paying costs of Rs.10,000/- to plaintiff/respondent No.1, apart from the costs of Rs.2,000/- imposed upon her by the trial Court while passing the impugned order. November 22, 2012 ( T.P.S. MANN ) JUDGE