Writ Petition No.784 of 2009

7th May, 2010

Petitioner Counsel: Mr. J. VAZ
Respondent Counsel: Mr. G. SHIRODKAR

Cases Cited:
Ashok Maharaj Vs. Virender Sharma, 1998 AIHC 2213 [Para 7,9]
Kaluba Madhavrao Upase Vs. Rangubai Rajabhau Atole, 2007(4) ALL MR 252=2007(Supp.) Bom.C.R. 643 [Para 8]
U.P. State Brassware Corpn. Ltd. Vs. Udai Narain Pandey, 2006(4) ALL MR 177 (S.C.) [Para 9]
Vijay Kumar Madan Vs. R. N. Gupta Technical Education Society, 2002(3) ALL MR 223 (S.C.) [Para 10]
Arjun Singh Vs. Mohinder Kumar, AIR 1964 SC 993 [Para 10,11]
East India Cotton Manufacturing Co. Ltd. Vs. S. P. Gupta, 1985(28) DLT 22/MANU/DE/0179/1985 [Para 11]

JUDGMENT

JUDGMENT:- Heard. Rule. By consent, heard forthwith.

2. The petitioner herein is the defendant in marriage petition No.27/08/A. In this Writ Petition, the petitioner has challenged the order dated 22/07/2009, by which her application dated 20/04/2009 to set aside ex-parte order dated 18/02/2009 has been dismissed.

3. The petitioner/defendant is a resident of Belgaum. The matrimonial petition was filed before the CJSD, Vasco-da-Gama, under Article 4(4) of the Law of Divorce. The defendant was duly served with summons for the settlement of issues on 28/12/2008 and appeared through Counsel before the said Court on returnable date on 14/01/2009 and on this day sought further time and, as such, the suit was adjourned for Written Statement on 4/02/2009, on which day the defendant did not appear either personally or through Counsel.

4. The suit was then adjourned to 18/02/2009 and in view of the absence of the defendant it was ordered to proceed ex-parte. On the next date i.e. 5/03/2009, the plaintiff sought time. The plaintiff again sought time on 25/03/2009 when the suit was fixed for plaintiff's evidence. However, on 9/03/2009, the Court received a telegram from Shri. Dalvi, Counsel appearing on behalf of the defendant that he was bed ridden due to flue and fever. On 25/03/2009, the affidavit in evidence was filed and the case was adjourned to 9/04/2009. On 9/04/2009, the plaintiff again sought an adjournment and the suit was fixed on 20/04/2009.

5. On this day i.e. 20/04/2005, the defendant appeared and filed an application, purporting it to be an application under Order 9, Rule 4 r/w Section 151 of CPC. This application was filed along with written statement. In the application, it was contended on behalf of the defendant, that she was residing far away and therefore she be permitted to file a written statement and produce relevant documents and this would not cause any hardship or loss to the plaintiff. The defendant therefore sought to set aside the ex-parte order dated 18/02/2009. Affidavit of the defendant was filed in support of the application.

6. Rule 7, Order 9, C.P.C. reads as follows;

"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."

7. Shri. J. Vaz, the learned Counsel appearing on behalf of the defendant has submitted that the defendant could not appear on 4/02/2009 as the defendant was busy in collecting the documents and her advocate was not well and this was conveyed by way of telegram sent to the Court on 9/03/2009. On the other hand, Shri. G. Shirodkar, the learned Counsel appearing on behalf of the plaintiff, has submitted that the fact that the advocate was sick and therefore could not appear, has not been set out by the defendant in her application dated 20/04/2009. Learned Counsel further submits that any application to set aside the order dated 18/02/2009 had to be filed on or before 5/03/2009 and in this context learned Counsel has placed reliance on the case of Ashok Maharaj and others Vs. Virender Sharma and others (1998 AIHC 2213), wherein the learned Single Judge of Delhi High Court has held that the words "at or before" used in the aforesaid Rule clearly go to indicate that an application for setting aside ex-parte order is to be filed latest before the date to which the case is adjourned after the passing of the ex-parte order. The learned Judge also observed that the application in that case was filed on October 23, 1997 after many dates of the passing of the ex-parte order dated July 12, 1996 and, therefore, the application was not legally tenable in law.

8. Shri. J. Vaz, on the other hand, has placed reliance on a decision of this Court in Kaluba Madhavrao Upase Vs. Rangubai Rajabhau Atole (2007 (Supp.) Bom.C.R. 643) : [2007(4) ALL MR 252] wherein this Court referring to a Division Bench judgment, has held that the time limit, prescribed in Order 8, Rule 1 of Civil Procedure Code, as regards filing of written statement, could not be construed as mandatory. In exceptional and extraordinary circumstances, the Court has discretion to permit the defendant to file written statement beyond the period of 90 days. The learned Single Judge has also held that a party cannot be non-suited on technicalities, but should be given an opportunity to defend its case, as held by the Apex Court. In an adversarial system no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. The learned Single Judge therefore proceeded to allow original defendant no.4 to file his written statement.

9. Be that as it may, in my view, the view held by the learned Single Judge of Delhi High Court in the case of Ashok Maharaj and others Vs. Virender Sharma and others (supra) could be considered as too technical. Order 9 of Rule 7 deals with the procedure where the defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance. It provides that 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. Previous non-appearance could mean on the day the ex-parte order was made or the dates in between before the application is made for setting aside the ex-parte order. The defendant could not have obviously known that the suit was adjourned to 5/03/2009, 25/03/2009 or 9/04/2009 because the defendant had not appeared on 18/02/2009 when ex-parte order was made. Needless to say Order 9, Rule 7 allows the defendant to contest on good cause for his previous non-appearance being shown, when at or before ex-parte hearing, the defendant appears. Order 9, Rule 7 comes into operation when the proceedings have not been disposed of finally as in the present case, and the ex-parte order terminating proceedings is then to be passed. The words where the Court had adjourned the hearing of the suit ex-parte mean that is to be hearing on the date to which the suit stands adjourned. If the hearing is completed and the suit is adjourned only for judgment, there is no adjournment of the hearing of the suit and in such situation, Order 9, Rule 7 has no application, but if the suit is adjourned such as for evidence, arguments, it would mean that ex-parte hearing was not completed and the hearing of the suit ex-parte was adjourned, like the case at hand. Ex-parte proceedings can be set aside and the defendant can be allowed to contest if good cause is shown. Likewise, if the defendant wants to put in written statement the defendant can do so only if good cause is shown. The term sufficient cause or good cause are always construed liberally. It is true that the defendant did not set up the sickness of her advocate in her application, but it is a matter of record that the defendant's advocate had sent a telegram informing about his sickness on 9/03/2009 which the Court had received. This position has not been contested by the plaintiff and cannot be contested as it is a matter of record. Shri. Vaz, the learned Counsel appearing on behalf of the defendant has placed reliance on the case of U.P. State Brassware Corpn. Ltd. & Anr. Vs. Udai Narain Pandey (2006(4) ALL MR 177 (S.C.)) to contend that the relief to be granted could be suitably moulded. In this case, the Apex Court, referring to Order 7, Rule 7 which deals with relief to be substantially stated, has observed that the said Order 7, Rule 7 confers power upon the Court to mould the relief in a given situation. It is one thing to say that the Court interprets a provision of a statute and lays down a law, but it is another thing to say that the Courts although exercise plenary jurisdiction will have no discretionary power at all in the matter of moulding the relief or otherwise give any such reliefs, as the parties may be found to be entitled to in equity and justice. If that be so, the Courts function as a Court of justice would be totally impaired. Discretionary jurisdiction in a Court need not be conferred always by a statute.

10. The Apex Court in Vijay Kumar Madan & Ors. Vs. R. N. Gupta Technical Education Society & Ors. (2002(3) ALL MR 223 (S.C.) with reference to Order 9, Rule 7 of CPC has referred to Arjun Singh Vs. Mohinder Kumar & Ors. (AIR 1964 SC 993) and has observed that the power in the Court to impose costs and to put the defendant-applicant on terms is spelled out from the expression "Upon such terms as the Court directs as to costs or otherwise". It is settled with the decision of this Court in Arjun Singh Vs. Mohinder Kumar & Ors. (supra), that on an adjourned hearing, in spite of the Court having proceeded, ex-parte earlier the defendant is entitled to appear and participate in the subsequent proceedings as of right. An application under Rule 7 is required to be made only if the defendant wishes the proceedings to be relegated back and re-open the proceedings from the date wherefrom they became ex-parte so as to convert the ex-parte hearings into bi-parte. While exercising power of putting the defendant on terms under Rule 7 the Court cannot pass an order which would have the effect of placing the defendant in a situation more worse off than what he would have been if he had not applied under Rule 7. So also the conditions for taking benefit of the order should not be such as would have the effect of decreeing the suit itself. Similarly, the Court may not in the garb of exercising power of placing upon terms make an order which probably the Court may not have made in the suit itself. As pointed our in the case of Arjun Singh (supra), the purpose of Rule 7 in its essence is to ensure the orderly conduct of the proceedings by penalizing improper dilatoriness calculated merely to prolong the litigation. Costs should be so assessed as would reasonably compensate the plaintiff for the loss of time and inconvenience caused by relegating back the proceedings to an earlier stage. The terms which the Court may direct may take care of the time or mode of the proceedings required to be taken pursuant to the order under Rule 7. For example, keeping in view the conduct of the defendant-applicant, the Court may direct that though the ex-parte proceedings are being set aside, the defendant must file the written statement within an appointed time or recall for cross-examination at his own cost and expenses the witnesses examined in his absence or that the defendant shall be allowed not more than one opportunity of adducing his evidence and so on. How the terms are to be devised and made a part of the order would depend on the facts and circumstances of a given case.

11. Reverting to the case of Arjun Singh (supra) the Apex Court with reference to Order 9, Rule 7 has stated that 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 conferred by the Code. The Court has further observed that on the terms of Order 9, Rule 7 if the defendant appears on such adjourned date and satisfies the Court by showing good cause for his non-appearance on the previous day or days, he might have the earlier proceedings recalled and have the suit heard in his presence. On the other hand, he might fail in showing good cause. Even in such a case he is not penalised in the sense of being forbidden to take part in further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. The Apex Court has further stated that thus, every contingency which is likely to happen in the trial vis-à-vis the non-appearance of the defendant at the hearing of a suit has been provided for and Order 9, Rule 7 and Order 9, Rule 13 between them exhaust the whole gamut of situations that might arise during the course of the trial. Order 9, Rule 7 prescribes the conditions subject to which alone an application competent under the opening words of that rule ought to be dealt with. The main part of Order 9, Rule 7 speaks of good cause being shown for non-appearance on a previous day. Lastly, that power is to be exercised to secure the ends of justice (emphasis supplied). The above view also appears to have been followed by the Delhi High Court in the case of East India Cotton Manufacturing Co. Ltd. Vs. S. P. Gupta (1985(28) DLT 22/MANU/DE/0179/1985) by observing that the law laid down by the Supreme Court in Arjun Singh made it clear that if the defendant shows good cause for his non-appearance on previous date or dates or ex-parte hearing of the suit, he can be allowed to file the written statement and contest the suit and if no good cause is shown he can be allowed to take part in further proceedings of the suit.

12. In other words, in the case at hand, defendant did appear on the adjourned date that is on 20/04/2009 and filed the application. True, ex-parte order was made against defendant on 18/02/2009, but certainly the defendant could not have known the dates on which the suit was adjourned in between. As already stated, the advocate had already sent a telegram on 9/03/2009 and considering that and the totality of the facts of the case, the defendant had shown good cause for her non-appearance on 18/02/2009 when the defendant was set ex-parte on account of the sickness of her advocate.

13. Considering the facts of the case, therefore, the impugned order dated 18/02/2009 is hereby set aside and the defendant is allowed to file the written statement which the defendant has already filed. The suit to proceed further in accordance with law. Defendant to pay a sum of Rs.1,000/- by way of costs to the plaintiff. Petition disposed of. Rule made absolute on the above terms.

Ordered accordingly.