V. Venkat Raju vs K. Subramanyam Naidu

A.V. Chandrashekara, J.—The order dated 14/3/2013 passed on I.A. No. 21 filed under Order 9 Rule 7 r/w Section 151 CPC in O.S. No. 1287/2004 by the learned Principal Senior Civil Judge, Bangalore Rural Court at Bangalore, is called in question in this revision petition.

Petitioners herein are the plaintiffs in the said suit. The first defendant was duly served with summons and he failed to appear before the court and hence placed exparte. Many years after he was placed exparte, an application came to be filed on his behalf under Order 9 Rule 7 of CPC to set aside the order of exparte and to permit the first defendant to come on record. The said application has been allowed by a very small order dated 14/3/2013, which reads as follows:

"Heard plaintiff on I.A. No. 21. Objection filed by other side. No harm will be caused to the other side if I.A. 21 is allowed. Hence same is hereby allowed with cost of Rs. 3,000/-. On 31/1/2005 exparte order against defendant No. 1, set aside." It is this order which is called in question.

Heard the learned counsel for the revision petitioners at length. Perused the order and connected records. Reliance is placed upon by the learned counsel on a decision rendered in the case of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), of the said decision is relied upon to contend that the court has no power to grant time beyond 90 days from the date of service of notice, that too assigning valid reasons after the lapse of 30 days from the date of service of summons. The said provision is not applicable to an application filed under Order 9 Rule 7 of CPC. Order 9 Rule 7 of CPC speaks as follows:

"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 exparte, 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." 4. While considering the application filed under Order 9 Rule 7 CPC, learned Judge has imposed cost of Rs. 3,000/- to be paid by the 1st defendant to the plaintiffs. Admittedly the case had been posted for cross-examination of PW-1 when the application under Order 9 rule 7 of CPC came to be filed. What is argued before this court by the learned counsel for the appellants is that the advocate appearing for the 3rd defendant had made a submission before the court that he would file vakalath for the 1st defendant also and in the light of non-filing of vakalath for the 1st defendant, the 1st defendant is deemed to have given instruction to the said counsel and therefore application could not have been allowed. This court is unable to accept the said contention in the absence of any cogent material in regard to the authorization given by the 1st defendant to the counsel who represented the 3rd defendant. The learned Judge has used his discretion to permit the 1st defendant to come on record and oppose the case of the plaintiffs in which various reliefs have been sought relating to immovable properties. The discretion so exercised by the learned Principal Civil Judge, cannot be found fault with in a petition filed under Section 115 of CPC. There are no merits in the appeal and accordingly appeal is dismissed.

Notwithstanding the dismissal of the appeal, the learned Judge is directed to dispose of the matter as early as possible, preferably within a period of 6 months, as the matter is of the year 2004, more particularly guided by the circular of this court in which direction has been issued to all the courts to dispose of all the cases which are not less than 5 years old.

I.A. 1/13 filed for stay does not survive for consideration and is accordingly dismissed as unnecessary.