Delhi District Court
Sh. Trilochan Singh vs Sh. Mahender Pal Singh Bakshi on 15 January, 2011
IN THE COURT OF SURESH KUMAR GUPTA,
ADDITIONAL DISTRICT JUDGE 03 (EAST),
KARKARDOOMA COURT, DELHI
Suit No.477/2009
IN THE MATTER OF :
Sh. Trilochan Singh ..................Plaintiff
Versus
Sh. Mahender Pal Singh Bakshi ..............Defendant
O R D E R
1. The defendant has filed an application U/o 9 R 7 CPC with the averments that on 27.04.09 he had come to the court and Learned presiding officer was on leave. He is an illiterate person. He left the court with the impression that he will again receive summons for the next date of hearing. He couldn't appear on the subsequent dates due to above stated reason. He came to know from inquiry in a criminal case on 05.10.09 and immediately contacted his counsel. His counsel inquired from the court and came to know that exparte order has been passed on 04.07.09. The absence is neither intentional nor deliberate but due to above stated reason. Hence, this application duly supported by an affidavit.
2. The plaintiff filed the reply with the averments that defendant was bound to appear when he was served with the summons. There is no reason for the absence of the defendant on the subsequent dates. The Suit No.477/2009 Page 1 of 3 defendant has not put his appearance deliberately and intentionally. The reply is supported by an affidavit.
3. Learned counsel for the defendant submitted that there is a good cause for the absence of the defendant so the application should be allowed. Reliance is placed upon Rehmat and others v. Ajay Pal Singh and others, 2003(2) Civil Court Cases 72(M.P.). Learned counsel for the plaintiff submitted that no good cause is shown by the defendant for his absence and moreover no application was moved on the next date of hearing as such application is not maintainable. He has placed reliance on Ashok Maharaj and others v. Virender and others, 1998 III A.D. Delhi 67.
4. Heard and perused the record. Order 9 R 7 CPC says that "where the court has adjourned the hearing of the suit exparte, the defendant, at or before such hearing, appear and assign good cause for his previous non appearance, he may, upon such terms as the court directs as to the cost or otherwise be heard in answer to the suit as if he had appeared on the date fixed for his appearance".
5. In the instant case, the defendant didn't appear on 04.07.09 as a result he was proceeded exparte. The case was adjourned for 13.08.09 for exparte evidence and two witnesses were recorded on that day and thereafter the case was adjourned for 06.10.09 on which date the present application was filed. On 13.08.09 the case was fixed for actual hearing. The application in question is not moved by the defendant on the date Suit No.477/2009 Page 2 of 3 fixed for the hearing i.e. 13.08.09.
6. The defendant has alleged that he came to know from a criminal case about the said order. He has not reflected the name of the criminal case. The date of hearing i.e. 04.07.09 was within the knowledge of the defendant. He has not reflected the name of the criminal case from which he derived the knowledge regarding exparte order. No ground has been shown which prevented the defendant from attending the court. The defendant has failed to assign the good cause for his non appearance and moreover application was not filed on the next date of hearing as envisaged under Rule 7 of Order 9. The case law referred to by Learned counsel for the defendant shows that application is maintainable as evidence was not closed. The case law referred to by Learned counsel for the plaintiff shows that application has to be moved by the defendant latest before the date on which the case is adjourned after the passing of exparte order. The case law referred to by Learned counsel for the plaintiff pertains to the Honourable High Court of Delhi as such same is binding upon this court as such same is relied upon. Reliance is placed upon Ashok Maharaj and others v. Virender and others, supra. Hence, the application is dismissed. It be tagged with the case file. Announced in the open Court on 15.01.2011 (Suresh Kumar Gupta) Additional District Judge03 (East), Karkardooma Court, Delhi / 15.01.2011 Suit No.477/2009 Page 3 of 3