$® HIGH COURT OF CHHATTISGARH: BILASPUR SINGLE BENCH : HON’BLE SHRI JAGDISH BHALLA, Ag. CJ W.P. No.2737 of 2003 PETITIONERS ‘1. Dhirendra aged 40 years ORIGINAL DEFENDANT Son of Shivendranath Thakur No.1 TO 3 RESPONDENTS ORIGINAL PLAINTIFF NO. 1 TO 5 2. Mahendra aged 35 years son of Shivendranath Thakur 3. Savita aged 30 years D/o Shivendranath Thakur All are resident of Saklor PrH.N. 85, R.N.M, Jaraud, Tahsil Simga, Disttr Raipur (CG) VERSUS 1A Nandkumar @ed 55 years Son 0f Narendra Nath Thakur B. Lallu Kumar aged 42 years S/o Narendra Nath Thakur 2.A Saral Devi aged 50 years Widow cf Damodar Mishra B. Ganesh Kumar aged 33 years slo Damodar Mishra Dilip Kumar aged 29 years slo Damodar Mishra 3. Suresh Kumar aged 60 years s/ Druvnath Thakur o Suman Thakur aged 55 years s/o Sarangnath 5. Kalinath aged 50 years s/or Jwalanath“" Thakur AN are resident of village Saklor, P.H.N 32, RNM. Jaruad, Tahsil — Simga, Distt. Raipur (CG) 6. Shanti Bai aged 60 years D/o Shivendra Nath Thakur (Deceased) 7. Mohneshwar aged 55 years s/o Anupam Nath Thakur All of resident of Saklor, PHN 35, RNM. Jaraud, Tahsil — Simga, Distt. Raipur (0G,) State of Madhya Pradesh (Now CG.) Through —- Collector, Raipur ORlGlNAL DEFENDANT NO. 4 TO 6 N Writ Petition under Articie 227 of the Constitution of India. Shri Maiay Kumar Bhaduri, counsel for the petitioners Shri MD. Sharma, coLinsel for the respondents No. 1 to 5. Present: ORAL ORDER (Passed o'n 08m August, 2007) This writ petition ie directed against the order dated 19-08—2003 passed by the Civii Judge Ciass ~ i, Baioda Bazar, District Raipur, whereby the application filed by the petitioner under Order 9 Ruie 7 of the Code of Civii Procedure has been rejected. it is admitted case of the parties that after hearing the arguments, the judgment has aiready been reserved by the Court concerned. Since, judgment is reserved, the petitioner can oniy chailenge the order in question after the judgment is pronounced, as has been held in the following cases of Arjun Singh Vs. Mohindra Kumar and others A.I.R. 1964 SC 993 (V 51 C 128) where it has been held vide para 17 as under :- “So far as the case before us is concerned the order under appeal cannot be sustained even on the basis that the finding recorded in disposing of an appiication under O. IX, R7 wculd operate as res judicate when the same question of fact is raised in a subsequent application to set aside an ex parte decree under O. iX R. 13. This is because it is not disputed that in order to operate as res judicata, the court deaiing with the first matter must had jurisdiction and competency to entertain and decide the issue, Adverting to the facts of the present appeal, this would primarily turn upon the proper construction of the terms of O.lX R7. The opening words of that rule are, as already seen, Where the Court has adjoumed the hearing of the suit ex parte’. Now, what do these words mean? Obviously they assume that there is to be a hearing on the date to which the suit stands adjourned. if the entirety of the ‘hearing’ of the suit has been completed and the Court being competent to prondunce the judgment then and there, adjoums the suit merely for the purpose of pronouncing judgment under O.XX R 1, there is clearly no adjournment of “the hearing” of the suit, for, there is nothing more to be heard in the suit. it was preciseiy this idea that was expressed by the learned Civii Judge when he stated $ % that having regard to the stage which the suit had reached the only proceeding in wich the appellant could parttcipate was to rhear the judgment pronounced and that on the terms of rules 6 and 7 he would permit him to do that. lf, therefore the hearing was completed and the suit was not "adjoumed for hearing”, O. lX R. 7 could have no application and the matter would stand at the stage of O.lX R. 6 to be followed up by the passing of an ex parte decree making R. 13 the only provision in order lX applicable. if this were the correct position, it would automatically follow that the learned Civil Judge would have no jurisdiction to entertain the application dated May 31, 1958 ' purporting to be under O. lX R. 7, or pass any order thereon en the merits. This in its turn would lead to the result that the application under Os lX, R. 13 was not only competent but had to be heard on the merits without reference to the findings contained in the previous order.“ The Apex Court further held in the matter of Bhanu Kumar Jain Vs. Archana Kumar and another AIR 2005 SC 626 that: “Order 9, Rule 7 of the Code postuiates an application for allowing a defendant to be heard in answer to the suit when an order posting a suit for ex parte hearing was passed only in the event, the suit had not been heard as in a case where hearing of the suit was complete and the court had adjourned a suit for pronouncing the judgment an appiication under Order 9, Rule 7 would not be maintainable. (See Arjun Singh Vs. Mohindra Kumar and others, AIR 1964 SC 993). The purpose and object of Order 9, Rule 7 of the Code has been explained by this Court in Vijay Kumar Madan and Others v. R.N, Gupta Technical Education Society and Others [(2002) 5 SCC 30] and Ramesh Chand Ardawatiya v. Anil Panjwani [(2003) 7 SCC 350].” lt has also been held by the Apex Court in the matter of Lal Devi & Another Vs. Vaneeu Jain & Ors. AIR 2007 SC 1889 “lt is true that in view of the law laid down by this Court in Arjun Singh (supra) the learned District Judge could not have entertained an application under Order iX Ruie 7 C.P.C." W9 1n the light of above, no interference is warranted. Accordingly, the writ petition is disposed of. Interim order, if any, stands discharged. Sdl— Jus‘ice K/ ” Acting Ch‘e'f