Delhi High Court
Arti Sukhdev Kashyap And Ors. vs Daya Kishore Arora on 27 July, 1992
Equivalent citations: 1992(24)DRJ285, 1992RLR442
JUDGMENT C.L. Chaudhry, J.
(1) The defendant has filed this application under Order 9 Rule 7 read with Section 151 Civil Procedure Code for setting aside ex parte proceedings taken against the defendant. is stated that the case was noticed by the counsel for the defendant on 3.4.1992 as Item No.4 in Short Cause List of this Court and when the counsel appeared before the court he was informed that the defendant had been proceeded ex parte and ex parte evidence had been recorded in the case, arguments had been heard, the case had been reserved for pronouncing judgment. From the court record it transpired that the dales of trial in this case were fixed from 24.1.1992 to 28.1.1992. The case was listed before the court on 24.1.1992. 27.1.1992, 28.1.1992. and 29.1.1992 and this court recorded exparte evidence of the plaintiff on 28.1.1992 and 29.1.1992. The defendant in this case was availing the services of Shri Raghubir Malhotra. Advocate who was conducting his case and he informed the defendant that (he dates of trial were from 20.7.1992 to 24.7.1992 and the defendant noted the dates accordingly. Thereafter the defendant engaged the present advocate, who was informed of the dates of trial to be 20.7.1992 to 24.7.1992 and the advocate accordingly noted the dales in his diary. When the case was fixed before this court on 24.1.1992 to 29.1.1992 neither the defendant nor his counsel were aware of those dates and it was on account of (his reason that they did not appear before this court. It is a matter of regret that the office of the present counsel did not check up the daily cause list from 23.1.1992 to 29.1.1992 because of the fact that the dates of trial in their diary were from 20.7.1992 to 24.7.1992. So the mistake of the office of the counsel was inadvertant and unintentional. Non-appearance of the defendant and the counsel on the dales of trial was without any intention and was for the reasons explained above. The defendant will suffer irreparable loss and injury in the event the case is decided ex-parte against the defendant. Under these premises it is prayed that ex-parte proceedings taken against the defendants be set aside and the case be tried on merits.
(2) It may be mentioned that the suit was listed on 15.7.1992 for pronouncement of judgment and on that date the application was also listed before the court for orders. Notice of this application was given to the counsel for the plaintiff. In order to appreciate the relevant contentions of the parties it is necessary to give a brief resume of the case, which is necessary for disposal of this application.
(3) The dates of trial in the suit were fixed from 23.1.1992 to 28.1.1992. The matter was listed before the court on 24.1.1992. On that date Mr. Ishwar Sahai appeared for the plaintiff and none appeared for the defendant. The case was adjourned lo 27.1.1992 for recording evidence of the plaintiff. On 27.1.1992 also none was present on behalf of the defendant and the case was adjourned to 28.1.1992. On that date also none appeared for the defendant and the statements of Public Witness .I and Public Witness .2 were recorded. For remaining evidence of the parties the case was adjourned to 29.1.1992. On that date the statement of one more witness was recorded and the plaintiff closed her evidence. The suit was adjourned for arguments to 24.2.1992. On 24.2.1992 it was adjourned to 28.2.1992 for final arguments. Again on 28.2.1992 it was adjourned to 3.4.1992 for final arguments. The arguments were finally heard in the suit on 3.4.1992 and the judgment was reserved. The suit was listed for pronouncement of judgment on 15.7.1992. on which dale the application which is under disposal was listed before the court.
(4) I have heard the learned counsel for the parties and have gone through the record of the case. It was contended on behalf of the plaintiff that the application under Order 9 Rule 7 was not maintainable at this stage. The entirety of the hearing of the suit has been completed on 3.4.1992 and the court being competent to pronounce the judgment then and there adjourned the suit accordingly for the purpose of pronouncement of judgment. There is clearly no adjournment of 'hearing' of the suit, for there is nothing more to be heard in the suit. In such a case Order 9 Rule 7 Cpc would have no application. In support of his contention he has relied upon a judgment of the Supreme Court delivered in the case of Arjun Singh Vs. Mohindra Kumar: wherein the Supreme Court made the following observations: "THE opening words Order 9 Rule 7 are "Where the Court has adjourned the hearing of the suit ex parte". Obviously they assume that there is to be a hearing on the date to which the suit stands adourned. 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 20 Rule I, there is clearly no adjournment of 'the hearing' of the suit, for there is nothing more to be heard in the suit. In such a case 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-parte decree making Rule 13 the only provision in Order Ix applicable."
Reliance was also placed on the judgment of this court in the case of East India C. Mfg. Vs. S.P. Gupta: 1985 Rlr (15) page 294, wherein this court held as under: "THE words "Where the Court has adjourned the hearing of the suit ex parte", means that there is to be a hearing on the date to which the suit stands adjourned. If the. "hearing" of the suit has been completed and the Court has adjourned the suit merely for the purpose of pronouncing judgment, there is clearly no adjournment of "the hearing" of the suit and in such circumstances Order 9 Rule 7 would have no application. But if the suit has been adjourned for hearing ex-parte such as for evidence etc. and it is further adjourned for arguments it would men that ex parte hearing of the suit was not competed and the hearing of the suit ex parte was adjourned. Under this rule if an application is made on any date fixed for ex parte hearing of the suit showing good cause for his non-appearance on previous date or dates the application would be in accordance with Order 9 Rule 7. If the applicant establishes good cause for his previous non-appearance the Court would have jurisdiction to set aside the order proceeding ex parte."
(5) On the other hand the contention of Mr. Jain is that it is a fit case for exercising inherent power by this court in setting aside the ex parte proceedings. In my opinion the contention of Mr. Ishwar Sahai should prevail. The authority of the Supreme Court cited on behalf of the plaintiff squarely covers the case in hand and there is no escape but to hold that the application of the defendant is not maintainable.
(6) The other contention of Mr. Jain that the court should exercise its inherent powers also has no force. In the case of Arjun Singh (Supra) the Supreme Court also observed that the inherent powers of the court could not over-ride the express provisions of law. If there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers coffered by the Code. When once the hearing starts, the Code contemplates only two stages in the trial of the suit: (1) where the hearing is adjourned or (2) where the hearing is completed. Where hearing is completed the parties have no further right or privileges in the matter and it is only for the convenience of the Court that Order Xx Rule 1 permits judgment to be delivered after an interval after the hearing is completed. It would, therefore, follow that after the stage contemplated by Order Ix Rule 7 is passed the next stage is only the passing of a decree which on the terms of Order Ix Rule 6 the Court is competent to pass. And then follows the remedy of the party to have that decree set aside by application under-Order Ix Rule 13. There is thus no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary, for the court to afford to the party the remedy of getting orders passed on the lines of Order Ix Rule 7. As provision has been made for every contingency, there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of justice.
(7) In view of the observation of the Supreme Court the contention of Mr. Jain cannot be accepted. In the result the I.A. 3628/1992 is dismissed. Now I proceed to deliver the judgment in the main Suit.