Madras High Court
Palani Nathan vs Devanai Ammal on 14 December, 1987
Equivalent citations: (1989)2MLJ259
ORDER K.M. Natarajan, J.
1. The plaintiff in the suit has preferred these two revisions against the orders passed in I.A.Nos.307 of 1987 and 357 of 1987 in O.S. No. 100 of 1985 on the file of the Sub Judge, Thiruvannamalai. The facts which are necessary for the disposal of these two revision petitions are as follows:- The plaintiff filed the suit against defendants 1 to 3 for the relief of specific performance on the basis of an oral agreement of sale with the first defendant. The suit was posted for the first hearing on 29-8-1986. The second defendant filed a written statement. The third difendant who was impleaded subsequently adopted the written statement. Since the first defendant did not appear, she was set ex parte on the first hearing date, namely, 29-8-1986. The first defendant filed the petition, I.A. No. 307 of 1987 to set aside the ex parte order passed against her and permit her to conduct the suit. It is alleged in the affidavit that the suit was filed against her, her daughter the second defendant and another, on the basis of an oral agreement of sale. At the time when the summons was served on her, she was at Malaysia and she could not come to Thiruvannamalai and engage a counsel. Her daughter the second defendant in whose favour she had executed a settlement deed appeared in court and filed a written statement. She has already sent a reply notice to the notice sent by the plaintiff prior to her going to Malaysia setting out all the defence. She would further state that she has recently come down to India on a temporary visa for the conduct of the suit and she was informed by her counsel that she was set ex parte on the first hearing date when she was absent. She has also stated that it was due to reason beyond her control she could not appear, that she is not filing any separate written statement that she only adopted the written statement already filed by the second defendant, her daughter and that she only wanted to participate in the trial to deny the allegation of the respondent (plaintiff) that there was an oral agreement of sale between her and the plaintiff and that no prejudice would be caused to the other side and that her presence is necessary for the final and effective adjudication of the suit claim. The revision petitioner, who is the plaintiff, resisted the said application and filed a counter. He also filed I.A. No. 357 of 1987 under Section 3 of the Limitation Act to dismiss the application IA. No. 307 of 1987. It is alleged by the revision petitioner in the affidavit filed in support of the application as well as in the counter affidavit filed in the other application that the present application under Order 9, Rule 7, C.P.C. is not maintainable as it was not filed within 30 days and that in view of the fact that no petition to condone the delay under Section 5 of the Limitation Act is filed, the application is liable to be dismissed as it is barred by limitation. Further, in view of the admitted fact the first defendant came to India only to give evidence and that the counsel appearing for the other defendant, it cannot be said that she had no knowledge of the exparte order till 22-9-1987. The first defendant had no defence at all. She cannot adopt the written statement filled by her daughter, as her defence is different from the defence of the other defendants. Hence the petition filed by the first defendant is liable to be dismissed and the application filed by the plaintiff is to be allowed.
2. The Subordinate Judge allowed I.A. No. 307 of 1987 on the ground that the petition is only to set aside the ex parte order against the first defendant in as much as she wants only to adopt the written statement already filed by the other defendant and that the plaintiff will not be prejudiced in any manner. The application I.A. No. 357 of 1987 filed by the plaintiff was dismissed in view of the fact that IA. No. 307 of 1987 was allowed and the petition has become infructuous. Aggrieved by the same, these two revisions have been filed.
3. The learned Counsel for the revision petitioner contended that the application filed by the first defendant to set aside the ex parte order is not maintainable since it is not filed within 30 days and it is barred by limitation. Further, since the first defendant has not filed written statement and the written statement is only now sought to be filed, in view of Order 8, Rule 10, C.P.C. the petition is not maintainable. On the other hand, the learned Counsel for the respondent (first defendant) submits that the suit is still pending, that only an ex parte order was passed against the first defendant for her non-appearing on the date of first hearing, that she wants to continue the proceedings already pending and that she did not file any separate written statement, but only adopts the written statement of her daughter which was filled already and wants to take part in the proceedings along with her. 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 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.
It is only for settling 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. Lakshminarasimhan 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 plaintiffs 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 only 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 or 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 A.I.R. 1986 P. and H. 19 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 has 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 he 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 he 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 A.I.R. 1961 Ker. 287. In Delhi Development Authority v. Shanti Devi A.I.R. 1982 Delhi 159.
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 at or before the next date of 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 exparte... 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 issues 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. Further the question of filing written statement also does not arise as the first defendant is only adopting the written statement filed by her daughter and she wants to give evidence in support of her case. The suit is filed only on the basis of an alleged oral agreement between her and the plaintiff and the same is disputed by her even prior to the filing of the suit by issuing a reply notice and as such no prejudice would be caused to the other side. Further, she was in Malaysia at the time when the summons was served on her. In the circumstances, it cannot be said that the discretion used by the court below in allowing the application under Order 9, Rule 7, C.P.C. is illegal or improper.
4. The learned Counsel for the revision petition wants to distinguish the decisions relied on by the learned Counsel for the respondent, on the ground that in those cases written statement was filed and at the subsequent hearing the defendant did not appear. But in the instant case the written statement was not filed and hence those decisions are not applicable. It was submitted that in view of Order 8, Rule 7, C.P.C. the petition under Order 9, Rule 7, C.P.C. is not maintainable. I do not find any merit in the said contention. In Order 8, Rule 10, C.P.C. it is stated that if the defendant fails to file the written statement or the additional written statement within the time prescribed by Court, the Court can pronounce judgment against him. But in this case, the question of fixing time for filing written statement did not arise, as even on the very first hearing date the defendant was absent and she was set ex parte. When once the ex parte order is set aside, she is relegated back to the position thereafter the question of filing written statement arises. Even otherwise, in a pending suit, within the permission of the Court, written statement can be filed, as observed by Their Lordships of the Supreme Court. The learned Counsel for the revision petitioner relied on the decision reported in Kodi Makku Naicker v. Agathiappa Gounder (1949) 1 M.LJ. 523 : A.I.R. 1949 Mad. 804 : 62 L.W. 118 wherein under Head-note 2 it was held:
Upon the failure of the defendants to file a written statement on the day fixed by the Court or before the date on which issues were framed, they had no legal right to file a written statement.
The said decision is not applicable to the facts of the case. It is to be stated that as a matter of right the defendant is not entitled to file written statement if he failed to file written statement on the date fixed or on the date fixed for framing issues by the court. But it cannot be said that he cannot file written statement even after obtaining leave of the Court at a subsequent stage. Here, that question does not arise as the first defendant was set ex parte even at the very first hearing and hence the relevant provision applicable in this case is Order 9, Rule 7, C.P.C. and not Order 8, Rule 10, C.P.C. as contended by the learned Counsel for the revision petitioner. The learned Counsel for the revision petitioner relied on the decision in Kiktshru v. Nargesh A.I.R. 1942 Mad. 159. In that case, there was delay in filing the written statement and the defendant filed an application for extension of time for filing written statement as there was a delay of two months. In the circumstances of the said case, the said application was dismissed as the Court did not see any ground to extend the time. The said decision is not helpful to the case of the petitioner. For all these reasons, both the revisions fail.
5. In the result, both the revisions are dismissed. However, in the circumstances of the case, there will be no order as to cost.