Smt. Mamta Rani v. Smt. Satya Devi

(Smt. Satya Devi v. Mamta Rani), whereby the revision petition filed by the respondent-defendant was allowed the order dated 27.04.2022 dismissing application moved by respondent-defendant under Order 9 Rule 7 CPC to proceed ex parte was set aside.

2. Facts shorn-off unnecessary details are that petitioner-plaintiff instituted an Original Suit No.17 of 2017 Mamta Rani v. Smt. Satya in the Court of Civil Judge Vikas Nagar, Dehradun. The said suit was proceeded ex parte by order dated 06.11.2019. The ex parte evidence was taken by the trial Court and the suit for pronouncement of judgment on

22.02.2020. The respondent-defendant, only three days prior to the date of judgment i.e. on 19.02.2020 moved an application under Order 9 Rule 7 CPC for setting aside the order dated 06.11.2019. 1

3. The application moved under Order 9 Rule 7 CPC by the respondent-defendant was rejected by learned Civil Judge (Jr. Div.) Vikas Nagar by order dated

27.04.2022 by way of a detailed order. It is feeling aggrieved by the said rejection dated 27.04.2022, the respondent-defendant preferred Civil Revision No.18 of 2022, Satya Devi v. Mamta Rani in the Court of Additional District Judge, Vikas Nagar, Dehradun. The said revision was allowed by order dated 20.03.2023. The petitioner-plaintiff has come up before this Court feeling aggrieved by the aforesaid revisional order.

4. It is mainly contended by learned Counsel for the petitioner-plaintiff that application under Order 9 Rule 7 CPC was not maintainable in view of the fact that the matter was proceeded ex parte and it was listed for pronouncement of judgment on 22.02.2020, and therefore, at such belated stage, instead of filing the application under Order 9 Rule 7 CPC, the application under Order 9 Rule 13 CPC should have been filed by the respondent-defendant awaiting pronouncement of judgment. He further submits that as per the law enunciated by the Apex Court such an application under Order 9 Rule 7 CPC is not maintainable at a belated stage. Reliance has been placed by learned counsel for the petitioner on a judgment rendered by the Apex Court in the case of ‘Arjun Singh v. Mohindra Kumar and others’ reported in 1964 AIR, S.C. Page 993. He has mainly relied upon paragraph no.17 which reads as under: - “So far as the case before us is concerned the order under appeal cannot be sustained even on the basis that the finding recorded in disposing of an application under O. IX, r. 7 would operate as res judicata when the same question of fact is raised in a subsequent application to set aside an ex parte decree under O. IX, r. 13. This is because it is not disputed that in order to operate as res judicata, the court dealing with the first matter must have had jurisdiction and competency to 2 enertain and decide the issue. Adverting to the facts of the present appeal, this would primarily turn upon the proper construction of the terms of O. IX, r.7. The opening words of that rule are, as already seen, 'Where the Court has adjourned the hearing of the suit ex parte'. Now, what do these words mean? Obviously they assume that there is to be "a hearing" on the date to which the suit stands adjourned. If the entirety of the "hearing" of a suit has been completed and the Court being competent to pronounce judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under O. XX, r. 1, there is clearly no adjournment of "the hearing" of the suit, for there is nothing more to be heard in the suit. It was precisely this idea that was expressed by the learned Civil fudge when he stated that having regard to the stage which the suit had reached the only proceeding in which the appellant could participate was to hear the judgment pronounced and that on the terms of rules 6 & 7 he would permit him to do that. If, therefore, the hearing was completed and the suit was not "adjourned for hearing", O. IX, r.7 could have no application and the matter would stand at the stage of O. IX, r.6 to be followed up by the passing of an ex parte decree making r. 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 O. IX, r.7, or pass any order thereon on the merits. This in its turn would lead to the result that the application under O. IX, r. 13 was not only competent but had to be heard on the merits without reference to the findings contained in the previous order.”

5. Per contra, learned counsel respondent-defendant submits that the application was rightly filed under Order 9 Rule 7 CPC, and accordingly, the same was rightly allowed by the Revisional Court on the payment of costs of Rs.1,000/-. So far as the case law cited by learned counsel for the petitioner is concerned, learned counsel respondent- defendant has no submission to make.

6. Having heard learned Counsel for the parties and on perusal of the record as well as aforesaid case law, this Court is of the view that the application under Order 9 Rule 7 CPC moved by the respondent-defendant was not maintainable at such a belated stage when the suit itself was fixed for pronouncement of judgment. The proper course available to the respondent-defendant was to wait for pronouncement of judgment and to 3 challenge it by filing an application under Order 9 Rule 13 CPC.

7. Accordingly, the writ petition is allowed. Judgment dated 20.03.2023 passed by learned Additional District Judge at Vikas Nagar in Civil Revision No.18 of 2022 (Smt. Satya Devi v. Mamta Rani), which is impugned in this petition, is hereby set aside.

8. Interim order dated 15.10.2024 is hereby vacated.

9. of. Rdang Pending application, if any, stands disposed (Pankaj Purohit, J.) 09.10.2025 4