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Judgment
V.K. Bali, J.—This is defendant''s appeal against whom his wife and two minor children obtained a decree for maintenance to the tune of Rs.300/- per month. This decree was passed by Sub Judge, Ist Class, Moga on November 8, 1978. It was held that the plaintiffs had no source of income and the defendant-husband was owner of valuable land. It was further held that the amount of maintenance awarded to the plaintiffs will be a charge on the land in suit. As mentioned above, it is against this judgment and decree of the trial that the present appeal has been filed.
Record of the case shows that defendant had put in appearance and sought to defend the claim of the plaintiffs or maintenance on various grounds which gave rise to the following issues :-
"(1) Whether the plaintiffs are entitled to maintenance? If so, at what rate? OPP.
(2) Whether the plaintiffs are entitled to arrears of maintenance? If so how much and for which period? OPP.
(3) Whether the maintenance is to be charged on the property of the deft? OPP.
(4) relief."
After framing issues when the matter was fixed for recording evidence of the plaintiff on April 11, 1978, the defendant did not choose to appeal. Counsel for the defendant prayed for adjournment for payment of maintenance which was earlier allowed vide order dated June 5, 1976. It may be mentioned here that interim maintenance was settled at the rate of Rs. 80/- per month. However, the case was adjourned to May 2, 1978 for payment of maintenance allowance but the defendant did not turn up on May 2, 1978 and on the request of the learned Counsel for the defendant, the matter was adjourned to may 27.1978 and again on the request of the learned Counsel for the defendant, the matter was adjourned to July 25, 1978. On this adjourned date neither the defendant nor his Counsel appeared. Therefore, vide order aforesaid the defendant was proceeded exparte. An application under Order 9 Rule 7 of the CPC was filed by the defendant for setting aside the ex-parte proceedings but the same was dismissed on September 29, 1978. The aforesaid order reads thus :-
"Defendant/applicaton has not come present. No cause has been shown for his absence today. No other evidence is present. Previous costs also not paid. No grounds for grant of any other adjournment-Evidence of the applicant stands closed. I find no sufficient ground to set aside the ex parte proceedings. Hence application under Order 9 Rule 7 C.P.C. is hereby dismissed.
To come up for ex parte evidence on the plaintiff on 20.12.1978."
It appears from the record that thereafter evidence of the plaintiff was recorded and on unrebutted evidence given by her, judgment and decree in the manner fully indicated above was passed.
This matter has been called several times not only today but on earlier occasions as well. Interim order of this Court dated May 9, 1997 in that connection may be seen. Today Mr. Majithia has informed the Court that the Counsel for the appellant Mr. Doad was contacted by him and he stated that he shall attend the Court today, but unfortunately Counsel for the appellant has made himself unavailable today also.
In the very nature of things, unless an order passed by Subordinate Judge under Order 9 Rule 7 of the CPC is successfully challenged, no argument can possibly arise to question the final order culminating into judgment and decree passed by the trial Judge. No occasion here at all arises to set aside the order dated September, 29, 1978 passed by the Subordinate Judge under Order 9 Rule 7 of the Code of Civil Procedure, which has been reproduced above. Order clearly demonstrates that the defendant who had moved an application under Order 9, Rule 7 was unable to show sufficient cause for his non-appearance on the earlier date of hearing. With a view to substantiate sufficient cause, he was provided with an opportunity but he took time for that for which he was burdened with costs. On the date when the order was passed, none appeared and even the costs were not paid. The Court finds no infirmity in order dated November 8, 1978. On the other hand, the Court is of the view that with a view to avoid or prolong payment of interim maintenance, the defendant absented himself intentionally.
There is no merit in this appeal which deserves to be dismissed with costs. The judgment and decree passed by the trial Court is, thus, affirmed.