Madras High Court
Pilla Reddy And Ors. vs Thimmaraya Reddy And Ors. on 27 August, 1996
Equivalent citations: (1997)1MLJ37
ORDER S.S. Subramani, J.
1. Defendants 4 to 6 in O.S. No. 13 of 1996, on the file of the Subordinate Judge's Court at Hosur, are the revision petitioners.
2. Plaintiffs filed the above suit for partition. Even though the present suit is numbered as O.S. No. 13 of 1996, we find that the suit was instituted some time in the year 1986 as O.S. No. 200 of 1986. Even though now it is ten years past since the institution of the suit, no progress has been made in the suit. Some of the defendants have filed written statement. Defendants 4 to 6 who have filed the present revision petition were declared ex parte on 12.3.1987. They filed an application under Order 9, Rule 7, C.P.C. praying that the ex parte order against them may be set aside. They also filed a written statement along with the application.
3. Court below, by the impugned order, dismissed the application, and the same is challenged in this revision.
4. One of the main reasons for dismissing the application is that the application is barred, and the petitioners have not shown good cause for setting aside the ex parte order.
5. The legality of the order is now challenged by the petitioners herein.
6. When the matter came for admission, learned Judge directed notice of motion, and after the respondents entered appearance, learned Counsel on both sides were heard.
7. One of the main reasons assigned by the court for dismissing the application is that the application should have been filed under Article 137 of the Limitation Act, i.e., within three years from the date of the Order when they were declared ex parte. Since no application was filed within that time, the court below was of the view that the same is barred.
8. The said finding cannot be correct. It is a pending proceeding, and it is well-settled law that once a suit has been instituted, limitation will not run. In Delhi Development Authority v. Shanti Devi and Anr. , a learned Judge of that High Court said that 'under the Limitation Act no period is prescribed for filing an application for setting aside order proceeding ex parte. Under Rule 7 of Order 9 of the Code the defendant is allowed to file an application at or before the next date of hearing and if he assigns good cause for his non-appearance on the previous date of hearing the court may set aside the order proceeding ex parte. The application by the petitioner defendant under Order 9, Rule 7 was made on the next date of hearing i.e.., 16th August, 1979. Thus it is clear that the defendant petitioner filed the application in accordance with Order 9, Rule 7 of the Code. It must therefore be held that the application was filed in accordance with law. There is no rule that an application under Order 9, Rule 7, is to be filed within 30 days from the date of the order proceeding ex parte.
(Italics) The said decision was followed by our High Court in the decision reported in Palani Nathan v. Devanai Animal , While considering a similar question, this Court held thus:
...For filing an application under Order 9, Rule 7, C.P.C., no limitation is prescribed and that it is open to the Court to condone her absence and set aside the ex parte order and permit her to take part in the proceedings at any stage of the proceedings. In support of the contention, the learned Counsel for the respondent drew my attention to the provision of Order 9, Rule 7, C.P.C. which reads:
Where the Court had adjourned the hearing of the suit ex parte and the defendant, at or before such hearing, appears and assigns good cause for his previous no-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.
It is only for setting aside the ex parte decree under Order 9, Rule 13, C.P.C, the question of condoning the delay under Section 5 of the Limitation Act arises in case there is a necessity for condonation of the delay has arisen. In support of his contention, the learned Counsel for the respondent relied on the decision in Venkatasubbiah v. Lakshmiharasimhan 49 M.L.J. 273 : 91 I.C. 545 : A.I.R. 1925 Mad. 1274 : 1925 M.W.N. 647. In that case, on the day of hearing of a suit, a defendant who had filed his written statement was absent and the court declared him ex parte. On that day, the plaintiff's evidence was taken and further hearing was adjourned to a later date. On the adjourned date the defendant wanted to present his evidence. Wallace, J. in that case held:
Held: that the ex parte order covered the period during which the party was absent and did not preclude him from proceeding with the suit after that stage.
Order 9, Rule 7, Civil Procedure Code does not prevent this but applies to the case where the party being declared ex parte wishes to be relegated back to the position which he would have been in, if he had appeared at the previous hearing and had opportunities of cross-examination, etc. This was followed in a subsequent decision in Pattanna v. Neeli Chetty Ramish Chetty and Anr. A.I.R. 1927 Mad. 1197. In Arjun Singh v. Mohindra Kumar . Their Lordships of the Supreme Court while considering the principle of res judicata with respect to the order passed under Order 9, Rules 7 and 13, held:
Order 9, Rule 7 does not put an end to the litigation nor does it involve the determination of any issues in controversy in the suit. A decision of direction in an interlocutory proceeding of the type provided for by Order 9, Rule 7 is not of the kind which can operate as res judicata so as to bar the hearing on the merits of an application under Order 9, Rule 13.
In Kamal Singh v. Sripal in para 4 it was held:
The defendant against whom an order declaring him to be proceeded ex parte was passed'On the date of the first hearing is entitled to come in and take part in the trial at a later stage. If he agrees to be bound by what his taken place during his absence he need not make an application under Order 9, Rule 7, C.P.C. for getting the order set aside. He can continue from the stage at which he appears. However, if he desires to cross-examine the witnesses examined before he entered appearance he can apply under Rule 7 of Order 9 and get an order, in which case he can claim an opportunity to cross-examine the witness examined before the entered appearance. In such a case, he seeks to be relegated back to the position he would have been if he were present on the day on which evidence was taken in his absence. Had be been so present, he would have got an opportunity to cross-examine the plaintiff's witnesses. This is the right which he can exercise after getting an order under Order 9, Rule 7, C.P.C.
In the said case, reliance was placed on the decision in Kumara Pillai v. Thomas . In Delhi Development Authority v. Shanti Devi .
Under the Limitation Act no period is prescribed for filing an application for setting aside the order proceeding ex parte. Under Rule 7 of Order 9 of the Code the defendant is allowed to file an application or before the next date of hearing and if he assigns good cause for his non-appearance on the previous date of hearing the Court may set aside the order proceedings ex parte.... There is no rule that an application under Order 9, Rule 7 is to be filed within 30 days from the date of the order proceeding ex parte....
In Sangram Singh v. Election Tribunal, Kotah , after extracting the relevant provision Order 9, Rule 7, Order 8 Rule 10, their Lordships observed:
We have seen that if the defendant does not appear at the first hearing, the court can proceed ex parte, which means that it can proceed without a written statement; and Order 9, Rule 7 makes it clear that unless good cause is shown the defendant cannot put in a written statement unless he is allowed to do so, and if the case is one in which the court considers a written statement should have been put in, the consequences entailed by Order 8, Rule 10 must be suffered....
What those consequences should be in a given case is for the court, in the exercise of its judicial discretion, to determine. No hard and fast rule can be laid down. In some cases, an order awarding costs to the plaintiff would meet the ends of justice; an adjournment can be granted or a written statement can be considered on the spot and issued framed. In other cases, the ends of justice may call for more drastic.
Thus, it is clear from the above decisions, there is no limitation for filing a petition under Order 9, Rule 7, Code of Civil Procedure....
[Italics supplied]
9. When the law says that the defendant need show only good cause for his previous non-appearance, it follow that till the matter is being heard, he can come at any time. There cannot be any question of limitation in such cases. The contention of the learned Counsel is; therefore, rejected.
10. The only other question which requires consideration is, whether the petitioner can be permitted to file written statement and agitate the matter from the date of pleadings.
11. Under Order 9, Rule 7, C.P.C, the court can permit the petitioners to participate in the proceedings from the date they appear. For the said purpose, they need not show any good or sufficient cause. Even without written statement, they could be permitted to cross-examine witnesses and also adduce evidence. If they are to be permitted to file written statement, then Order 9, Rule 7, C.P.C. contemplates hat they should show good cause. See and . In the later decision, the Supreme Court said that "there is no material difference between the facts to be established for satisfying the two tests of "good cause" and "sufficient cause" There cannot be a "good cause" which is not "sufficient" as affording an explanation for non-appearance, nor conversely a "sufficient cause" which is not a good one and further either of these is not different from "good and sufficient cause" which is used in this context in other statutes. If, on the other hand, there is any difference between the two, if can only be that the requirement of a "good cause' is complied with on a lesser degree of proof than that of "sufficient cause" assuming the applicability of the principle of res judicata to the decisions in the two proceedings, if the Court finds in the proceeding under Order 9, Rule 7 the lighter burden not discharge, it must a fortiori bar the consideration of the same matter in the later proceeding under Order 9, Rule 13 where the standard of proof of that matter is, if anything, higher.
12. In Sarkar's 'Law of Civil Procedure', commenting on Order 9, Rule 7, in Eighth Edition (1992), at page 718, the learned Author says that 'the rule is applicable if the defendant wants the court to retrace its steps and to be allowed to file written statement. But if the defendant wants to proceed from the stage already reached, he will have an absolute right without obtaining the court's permission to take part in the proceeding.' The learned Author further says that 'Rule 7 cannot be read to mean that defendant cannot be allowed to appear at all if he does not show good cause. All it means is that he cannot be relegated to the position he would have occupied if he had appeared. He cannot be stopped from participating in the proceedings simply because he did not appear in the first or some other hearing. He will have to show good cause for his previous absence, only if he desires to be relegated back to the position in which he would have been put if he had appeared at the previous hearings, so that the proceedings in his absence could be reopened."
13. A.N. Saha on "The Code of Civil Procedure" 5th Edition (1995), commenting on Order 9, Rule 7, C.P.C., at page 1024 says that 'In the matter of good cause the expression is to be liberally construed.' (Italics)
14. On the basis of the above principles of law, let us consider whether the petitioners have shown good cause for relegating back to the position of filing written statement along with the application. They have also filed a written statement along with the application. The suit is one for partition. Some of the defendants have already filed written statement. At the Bar, it was contended that the only dispute is regarding the quantum of shares, and the only question to be decided is regarding adoption. It is also submitted that the first defendant has filed written statement wherein to a certain extent, he has supported the case of the petitioners herein or has put forward the contention of the petitioners also. If that be so, there cannot be any difficulty even if the written statement is accepted. Even though the suit was filed in 1986, except the filing of pleadings, the suit has not progressed till date. Therefore, there cannot be any question of recalling the witness or adducing evidence or re-opening the evidence already adduced. None of these will arise. In the affidavit filed in support of the application, petitioners have further submitted that they have already filed a suit in the year 1991 in Sub Court, Krishnagiri, and they were under the impression that a separate written statement is not necessary in this suit, and they were under the bonafide belief that a further contest will only confuse the matter. They have also said that the only on the recent advice obtained by them, they thought of filing an application along with a written statement. When the petitioners themselves have filed the suit and were agitating their rights, it cannot be said that they were negligent in asserting their rights. When the suit has not reached any stage, I do not think that the plaintiffs also will be put to any hardship in case the written statement is accepted. The trial is yet to begin. But the petitioners must be put on terms for not filing the written statement for the last ten years. I find that there are some laches on their part, but since a liberal interpretation has to be given, I hold that the petitioners will permitted to file the written statement and the trial Court also will accept the same provided they pay to the counsel for the respondents in this Court a sum of Rs. 750 (Rupees Seven hundred and fifty) within three weeks from to-day. In case cost is paid within that time, the revision petition will stand allowed, and the written statement already filed by them will be accepted. In case the cost is not paid, petitioners will be permitted only to prosecute the proceedings from this stage, i.e., they will not be permitted to file their pleadings or permitted to retrace the steps already taken by be court below. Call this matter on 17.9.1996.