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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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ON THE 9th DAY OF SEPTEMBER, 2022
BEFORE
HON’BLE MR. JUSTICE SANDEEP SHARMA

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CIVIL MISC. PETITION MAIN (ORIGINAL) No.263 of 2022

Between:

of
SURENDER KAUR AGED ABOUT 51
YEARS WIFE OF SHRI SALIG RAM,
RESIDENT OF VILLAGE, POST OFFICE
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& TEHSIL BALDWARA, DISTRICT
MANDI, H.P., AT PRESENT R/O H. NO.
38/5, PALACE COLONY, MANDI TOWN,
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DISTRICT MANDI, H.P.
…. PETITIONER

(MR. R.L. CHAUDHARY, ADVOCATE)

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AND
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SHRI JAGTENDER SON OF LATE SHRI

YOGENDER PAL, RESIDENT OF H. NO.
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80/1, JAWAHAR NAGAR, MANDI,

TEHSIL SADAR, DISTRICT MANDI, H.P.
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…. RESPONDENT

(MR. BHUPENDER GUPTA, SENIOR

ADVOCATE WITH MR. JANESH
GUPTA, ADVOCATE)

Whether approved for reporting?. Yes.

This petition coming on for admission this day, the Court passed the following:

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ORDER

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Instant petition filed under Article 227 of the Constitution of

India, lays challenge to order dated 12.5.2022, passed by the learned Civil

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Judge, Court No.3, Mandi, District Mandi, HP, in CMA No. 9-IV/2021,

whereby an application under Order 9, Rule 7 CPC, having been filed by the

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petitioner-defendant, praying therein to set-aside the ex-parte order dated

9.11.2020, came to be dismissed.

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2. Precisely, the facts of the case as emerge from the record are
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that respondent-plaintiff filed Civil Suit No. 258/2020 for declaration and

injunction to the effect that the sale deed No. 1035/2019 dated 23.10.2019

is null and void and as such, petitioner be restrained from interfering in the
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suit land. Suit was listed before the court below on various dates. Though

pursuant to notice issued to the petitioner, learned counsel for the

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petitioner-defendant had put in appearance in the court on one date i.e.

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9.10.2020, but thereafter neither counsel nor petitioner-defendant chose to

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remain present in the court and as such, petitioner-defendant came to be

proceeded ex-parte vide order dated 9.11.2020. After conclusion of final

arguments, before pronouncement of final judgment, petitioner-defendant

filed an application under Order 9 Rule 7 CPC, praying therein to set-aside

the ex-parte order dated 9.11.2020. In the aforesaid application, petitioner-

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defendant averred that since courts were not working on regular basis on

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9.11.2020, on account of COVID-19 and on account of resolution of Bar

Association, neither petitioner-defendant nor his counsel could put in

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appearance in the court, impugned order dated 9.11.2020 proceeding

defendant ex-parte is not sustainable. However, aforesaid prayer made by

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the petitioner-defendant came to be resisted by the respondent-plaintiff on

the ground that petitioner defendant was fully aware of the listing of the
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case on 9.11.2020 and prior to this date, counsel appearing for the

petitioner-defendant had been appearing the Court, but learned trial court
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dismissed the application on the ground that same is not maintainable on

account of its being filed after conclusion of the hearing. In the aforesaid
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background, petitioner-defendant has approached this Court in the instant

proceedings praying therein to set-aside the aforesaid order.

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3. Having heard learned counsel for the parties and perused the
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material available on record vis-à-vis reasoning assigned in the judgment

impugned in the instant proceedings, this Court finds that after 9.10.2020,
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none put in appearance on behalf of the petitioner-defendant and as such,

he came to be proceeded ex-parte on 9.11.2020. Respondent plaintiff led

evidence and thereafter final arguments were concluded on 4.1.2021. It is

only after conclusion of the final arguments, petitioner-defendant filed an

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application under Order 9 Rule 7 CPC on 14.1.2021, claiming therein that

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courts were closed on account of COVID-19, however, aforesaid ground

raised by the petitioner defendant came to be rejected being contrary to the

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record. When matter was listed on 9.10.2021, as is evident from the

impugned order, it cannot be said that on that date, court was closed on

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account of COVID-19.

4. Leaving everything aside, after having perused provisions

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contained under Order 9 Rule 7 CPC, which are reproduced herein below,

this Court finds that application for setting aside ex-parte order can only be
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entertained, if it is filed before the conclusion of the arguments. Any

application filed after the conclusion of the arguments is not maintainable

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and in that eventuality, person being aggrieved on account of proceeded ex-

parte order has a remedy to file appropriate proceedings under Order 9

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Rule 7 CPC praying therein to set-aside ex-parte decree.

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“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-
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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.
5. While placing reliance upon judgment rendered by the Hon’ble

Apex Court in Arjun Singh v. Mohindra Kumar and Ors, AIR 1964 SC

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993, the Karnataka High Court in Rabiya Bi Kassim v. Country-Wide

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Consumer Financial Service Ltd, 2005 (1) RCR (Civil) 271 ( Civil

Revision Petition No. 3280 of 2001 with connected matters), has held

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that once case is finally heard and posted for judgment, application, if any,

for setting aside ex-parte order is not maintainable. Relevant paras of the

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afore judgment read as under:

“9. On consideration, we are of the opinion that once the

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matter has been finally heard and posted for judgment, as held
by the Supreme Court in Arjun Singh's case (supra) nothing is
required to be done by the Court except to pronounce the
judgment, and therefore the decision in Laxminarayan
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Enterprises case is not helpful. Admittedly, Clause (4) of Order
18 Rule 2, of CPC has been deleted and therefore the
respondent-plaintiff cannot take advantage of Laxminarayan's
case in the facts of the given case. Even if we assume it for the
sake of argument without accepting, in view of the amendment
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in CPC, as we find, the law relating to procedure in suits and

civil proceedings are governed by CPC, The CPC has been
amended from time to time. Recently also, in order to cut short
the delays at various levels in disposal of civil cases, CPC was
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amended by the Amendment Act of 1999 with effect from

1.7.2002. In the facts of the given case, sufficient opportunity
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was given to the plaintiff to complete his evidence, but he has

not availed the opportunity at appropriate time and thereafter
his evidence was closed. The case was fixed for defendant's
evidence and ultimately the case was heard and reserved for
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judgment on 20.6.2001. In our view, if the matter is reserved

for pronouncement of judgment, such an application is not
maintainable as otherwise it will defeat the very object of
amendment in speedy disposal of the cases.

10. As discussed above, in the facts of the case on hand, we

are of the opinion that making an interlocutory application to
reopen the case and record further evidence after the matter is
reserved for pronouncement of judgment is not permissible.
We answer the question referred for decision by holding that

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no application can be filed after the final arguments have been

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heard and the matter is posted for judgment. The Single Bench

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decision of this Court in Laxminarayan Enterprises V.
Laxminarayan Textile is not applicable in view of the decision
of the Supreme Court and as stated above”

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6. Consequently, in view of the above, this Court finds no illegality

and infirmity in the order dated 12.5.2022, passed by the court below and

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accordingly, same is upheld and present petition is dismissed being devoid

of any merit. Interim order, if any, stands vacated.

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9th September, 2022 (Sandeep Sharma),
Judge
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manjit
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