Jammu & Kashmir High Court
Service Selection Board And Ors. vs Ulfat Jan And Ors. on 10 October, 2006
Equivalent citations: 2007(2)JKJ145
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
JUDGMENT Mansoor Ahmad Mir, J.
1. This revision petition is directed against the order dated 20th April, 2006 passed by 3rd Additional Munsiff, Srinagar, in a case titled Ulfat Jan and Ors. v. Services Selection Board and Ors., whereby and where-under application of petitioners-defendants for setting aside the exparte proceedings came to be dismissed.
2. Heard. It appears that plaintiffs-respondents filed a suit before the learned District Judge, Srinagar, for passing a decree of declaration and permanent injunction on the grounds taken in the memo of plaint.
3. Summons came to he issued to defendants. In response defendants-petitioners caused appearance and were directed to file written statement. Defendants-petitioners failed to file written statement and their defence came to be struck-of in terms of Order 8 Rule 10 Civil Procedure Code, hereinafter for short CPC vide order dated 24th May, 1999 and the respondents-plaintiffs were directed to lead evidence. Thereafter, it appears that exparte proceedings came to be drawn against the defendants-petitioners.
4. It appears that on 24th February, 2001, plaintiffs-respondents moved application for permission to amend the plaint which came to be allowed vide order dated 2nd September, 2002. It is profitable to reproduce the operative part of the said judgment herein:
From the perusal of record, vide order dt. 24.05.1999, the right of defendants to file written statement was closed, as despite a number of opportunities, they have not submitted their written statement, as such I am of the view that in case of amendment, the pleadings are to be amended, but in the instant case since the defendants right to file written statement has already been struck of, therefore, the defendants have no right to file the amended written statement. Put up the main suit on 14-9-02. This application is accordingly disposed of and shall form part of the main file.
5. It appears that plaintiffs were allowed to amend the plaint but the defendants-petitioners were not allowed to file written statement on the ground that their defence was already struck-of.
6. It appears that thereafter again exparte proceedings came to he drawn against the petitioners-defendants but plaintiffs-respondents had not led any evidence in support of the averments contained in the amended plaint in exparte till today.
7. On 13th December, 2003 petitioners-defendants moved application for setting aside exparte proceedings which came to be dismissed vide impugned order.
8. It also appears that interim relief came to be granted subject to the objections of otherside vide order dated 3rd April, 1998 and another interim order came to be passed on 12th October, 2002 wherein the petitioners-defendants were directed to allow the plaintiffs-respondents to continue against their respective posts. It is profitable to reproduce relevant portion of order dated 12th October, 2002 herein:
Since the order dated 03.04.1998 has not been modified varied or reversed. Therefore, the disbanding of the application from the service will have no force. Accordingly, the non-applicants arc directed to allow the applicants to continue on their respective posts and order dated 11.10.2000 is kepi in abeyance. The application is disposed of and shall form part of the main suit.
9. Petitioners-defendants feeling aggrieved of the order dated 12th October, 2002 filed appeal along with application for condonation of delay before learned Principal District Judge, Srinagar. The condonation application came to be dismissed vide order dated 17th May, 2003 and consequently appeal also came to be dismissed as time barred. But the appellate court observed and held that order dated 3rd April, 1998 was subject to objections of otherside but defendants-petitioners had not filed objections and held that it was proper for the defendants-petitioners to file objections to the said application instead of filing appeal against the order dated 1 21h October, 2002. It is profitable to reproduce operative part of the said judgment herein, which reads as under:
Before parting with the file. I may observe here that the order impugned mainly rests on the earlier order dated 3rd April, 1998 which has been passed by the court subject to objections of the non-applicants (the applicants herein). In case the applicants have got any grievance to the order passed on 3rd April, 1998 they should apply to the trial court for modification or cancellation of the same by filing proper objections to the same. It was proper to file objections to that order instead of coming to this court in an appeal against an order which is the offshoot of order dated 3rd April, 1998. Applicants if advised may file objections to the main order before the trial court, in that case the trial court shall afford a reasonable opportunity to the non-applicants and decide the interim application on merits after hearing the parties. The trial court file be returned immediately to the court below and the parties shall appear before the trial court on 1st June, 2003. The appeal file of this court be consigned to records.
10. Petitioners-defendants filed objections/application for vacation of order dated 3rd April, 1998 on 18th March, 2005 before the trial court which is still pending adjudication. Plaintiff-respondents also filed objections to the said application on 27th April, 2005. It appears that trial court has not passed any order till date in the said application.
11. The question which emerges for consideration is that, whether the order impugned in this revision petition was rightly passed?
12. I am of the considered view that trial court has fallen in error while passing the impugned order for the following reasons.
13. The trial court has not concluded the proceedings till date. The hearing of the case is not over. No evidence has been led by the plaintiffs-respondents from the date of drawing the exparte proceedings till today and no injustice would be caused to the plaintiffs-respondents if the exparte proceedings are set-aside.
14. It is necessary to notice Order 9 Rule 7 of the Civil Procedure Code, for short Code, herein:
7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance:-- 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.
15. This provision of law provides when and how an application for setting aside the exparte proceedings can be filed. This provision mandates that application can be filed when the case is adjourned for hearing. Application will not lie if hearing is concluded. That means if arguments are heard judgment is reserved and the court has to pronounce judgment then at that stage the application for setting aside the exparte proceedings would not lie.
16. Apex Court in case titled Arjun Singh v. Mohindra Kumar has observed as under:
(15) The scope of a proceeding under Order IX Rule 7 and its place in the scheme of the provisions of the Code relating to the trial of suits was the subject of consideration in . Dealing with the meaning of the words "The courts may proceed ex parte" in Order IX Rule 6(1)(a) Bose. J. speaking for the Court said:
When the defendant has been served and has been afforded an opportunity of appearing, then, if he does not appear, the Court may proceed in his absence. But be it noted, the Court is not directed to make an ex parte order. Of course the fact that it is proceeding ex parte will he recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an ex parte decree or other ex parte order which the Court is authorised to make. All that Rule 6(1)(a) does is to remove a bar and no more. It merely authorizes the Court to do that which it could not have done without this authority namely to proceed in the absence of one of the parties. Dealing next with the scheme of the Code, the learned Judge pointed out that the manner in which the Court could thereafter proceed i.e. after Rule 6(1)(a) was passed would depend upon the purpose for which the suit stood adjourned, and proceeded:
If it is for final hearing, an ex parte decree can be passed, and if it is passed, then Order IX. Rule 13 comes into play and before the decree is set aside the Court is required to make an order to set it aside. Contrast this with Rule 7 which does not require the setting aside of what is commonly, though erroneously, known as "the ex parte order". No order is contemplated by the Code and therefore no order to set aside the order is contemplated by either, and referring to the effect of the rejection of application made under Order IX. Rule 7 he added:
If a party does appear on the day to which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing. But though he has the right to appear at an adjourned hearing, he has no right to set back the hands of the clock. Order I.X Rule 7 makes that clear. Therefore, unless he can show good cause, he must accept all that has gone before and be content to proceed from the stage at which he comes in.
That being the effect of the proceedings, the question next arises what is the nature of the order if it can he called an order or the nature of the adjudication which the court makes under Order I.X. Rule7? In its essence it is directed to ensure the orderly conduct of the proceedings by penalizing improper dilatoriness calculated merely to prolong the litigation. It does not put an end to the litigation nor does it involve the determination of any issue in controversy in the suit. Besides, it is obvious that the proceeding is of a very summary nature and this is evident from the fact that as contrasted with Order IX. Rule 9 or Order IX. Rule 7 no appeal is provided against action of the Court under Order IX Rule 7. "Refusing to set back the clock". It is therefore, manifest that the Code proceeds upon the view not imparting and finality to the determination of any issues of fact on which the court's action under that provision is based. In this connection reference may be made to a decision of a Division Bench of the Madras High Court in Sankaralinga v. Ratnasabhapati II R 21 Mad. 324. The question arose on an appeal to the High Court by the defendants against whom an ex parte decree had been passed on March. 30,1895. Previous thereto they had put in petitions supported by affidavits under Section 101 of the Civil Procedure Code of 1882 corresponding to Order IX Rule 7 to set aside "an ex parte order." accept their written statements, and proceed with the suit on the merits. The ground alleged for the relief sought was that they were not duly served with summons. This application was rejected by the Court. Thereafter, after an exparte decree was passed, they again filed another application under Section 108 under the then code corresponding to the present Order IX. Rule 13. The ground put forward was again the same, namely, that the summons was not properly served the District Judge having dismissed the application under Section 108 (Order IX Rule 13), the defendants preferred an appeal to the High Court. On behalf of the plaintiffs-respondents the contention was raised by Mr. Bhashyam Ayyangar learned Counsel, that the application lo set aside the ex parte decree under Section 108 was incompetent because the same question had already been decided against the defendant when he filed the application under Section 101. The Court composed of Subramania her and Benson. J.J, Said, the contention at first sight may seen to be reasonable, but having regard to the very wide words in any case used in Section 08 we are unable to hold that the defendant was not entitled to make an application under Section 108.
There have been other decisions in which a similar view has been held and though the provisions of the Code corresponding to Order IX Rule 7 and Order IX Rule 13 have been in force for over a century from 1859, there has not been a single case in which the plea of res judicata such as has been urged in the appeal before us has been upheld. On the other hand, we might point out that an exactly similar objection of res judicata was expressly raised and repelled in Bhaoo Patel v. Naroo. 10 CPLR 45 in a decision rendered in 1896 in which reliance was placed on a case reported in Ashruffunnissa v. Lehareau. ILR 8 Cal 272.
17. So far as the case before us is concerned the order under appeal cannot be sustained even on the basis that the finding recorded indisposing of an application under Order IX. Rule 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 Order IX Rule 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 entertain and decide the issue. Adverting to the facts of the present appeal, this would primarily turn upon the proper construction of the terms of Order IX Rule 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 the suit has been completed and the Court being competent to pronounce the judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under Order XX Rule 1 there is clearly no adjournment of "the hearing" of the suit, for, there is nothing more in he heard in the suit. It was precisely this idea that was expressed In the learned Civil Judge when he stated that having regard lo 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 and 7 he would permit him lo do that. If, therefore the hearing was completed and the suit was not "adjourned for hearing". Order IX Rule 7 could have no application and the matter would stand at the stage of Order IX Rule 6 to be followed up by the passing of an ex pane decree making Rule 13 the only provision in order IX applicable. If this were the collect 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 Order IX Rule 7 or pass and order thereon on the merits. This in its turn would lead to the result that the application under Order IX. Rule 13 was not only competent but had to be heard on the merits without reference to the findings contained in the previous order.
17. Keeping in view the mandate of Order 9 Rule 7 of the Code and the judgment of the Apex Court (supra) the application would be maintainable when the hearing is not concluded. It could not be said and held that if a case is adjourned to next date for hearing, the application would not lie. This provision mandates that till conclusion of the hearing the application is maintainable. But when hearing is concluded application would not lie.
18. This Court in ease titled Sham Lal v. Rajinder Kumar reported in 1992 KLJ 119 has observed as under:
6. Word "Hearing can admit" of a very wide and liberal interpretation. It may include recording of evidence, consideration of arguments on some aspects of suit, examination of various questions relating to suit and so on. The essential pre-requisite is whether the Judge is applying his mind to some aspect of the case. If he is conducting some routine work or passing interlocutory orders, he can't be said to be "hearing of the suit".
7. In a suit. "Hearing" can be conducted at various stages. It does not necessarily the last hearing at the time of final adjudication. Going by the Scheme and purpose of Order (C.P.C. hearing contemplated therein is the first hearing required to be conducted in terms of summons which may have been issued to the defendant under Order 5 Rule 1. It does not envisage an adjourned hearing which is taken care of by Order 17 CPC.
19. Applying the test to the instant case, the case has been adjourned from one date to another and the hearing has not come to an end for the reasons that plaintiffs-respondents have not led any evidence till today. Thus, in the given circumstances, the trial court was under legal obligation to allow the application and decide the case on merits after contest.
20. While perusing the file. I have also gone through the order referred hereinabove whereby the plaintiffs-respondents came to be permitted to amend the plaint but petitioners-defendants were not allowed to file written statement for the reasons that their defence came to be struck-off in terms of order, referred hereinabove, which came to be passed prior to application of the amendment.
21. I am of the view that said direction is also illegal and has caused miscarriage of justice and virtually has scuttled away the proceedings and the rights of the petitioners-defendants enroute.
22. Thus, in the given circumstances, I deem it proper to set-aside the impugned order.
23. Accordingly, the impugned order is set-aside. Application for setting aside the exparte proceedings is granted.
The petitioners-defendants are at liberty to file written statement before the trial court by or before the next date of hearing. The trial court is at liberty to grant one or more adjournment(s) to the defendant, for filing written statement, if circumstances would justify. The trial court shall also decide the application for grant of ad-interim relief in terms of the directions and observations made by learned District Judge, Srinagar.
24. Any observation made by this Court hereinabove shall not prejudice the rights of the parties and shall not influence the mind of the trial court in any way.
25. Revision is allowed.
Parties are directed to cause appearance before the trial court on 30 10.2006.
Registry is directed to send down the record alongwith a copy of this order.