IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 328 of 2010 Reserved on: 25.10.2010 Decided on: 03.11.2010 Jagat Ram & another …Petitioners. Versus Ravi Kant & others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioners: Mr. Tarun K. Sharma, Advocate. For the respondents: Mr. Lalit K. Sharma, Advocate. Deepak Gupta, J. 1. A short but interesting question of law arises in this case. 2. The petitioners were defendants in a civil suit filed by the respondent Ravi Kant, pending in the Court of the Civil Judge (Junior Division), Court No. III, Hamirpur. The petitioners were proceeded against ex-parte on 12.08.2009. The case was, thereafter, adjourned for ex-parte evidence for 29.10.2009, when no evidence was present. The case was then adjourned for 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- 18.01.2010 on which date two PWs were examined and arguments in the case were heard, thereafter, on 09.02.2010. Then, the case was fixed for pronouncement of judgment on 04.03.2010. 3. In the meanwhile, the present petitioners filed an application under Order 9 Rule 7 of the C.P.C. for setting aside the ex-parte proceedings. In this application, it was averred that the petitioners were not aware of the pendency of the suit and were wrongly proceeded against ex-parte. According to them, they were never served in the suit and came to know about the proceedings only when defendant No. 1 received summons in contempt proceedings, when he happened to visit his village. 4. The learned trial Court held that the defendants had been served through the daughter-in-law of defendant Jagat Ram, who happens to be the wife of defendant No. 2. But the main ground for rejecting the application was that after the case had been fixed for judgment, not for hearing and hence, the ex- parte proceedings could not be set aside. 5. I have heard Mr. Tarun K. Sharma, learned counsel for the petitioners and Mr. Lalit K. Sharma, learned counsel for the respondents. 6. The main question which arises is whether an application under Order 9 Rule 7 of the CPC is maintainable at the stage when the case is fixed for pronouncement of judgment. -: 3 :- To appreciate this contention, it would be necessary to refer to Order 9 Rule 7 of the CPC, which 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. Mr. Lalit K. Sharma, learned counsel for the respondents has drawn my attention to the judgment of the Apex Court in Arjun Singh versus Mohindra Kumar and others, AIR (51) 1964 Supreme Court 993, wherein the Apex Court held as follows: “The opening words of O.9 R. 7 are “Where the Court has adjourned the hearing of the suit ex parte”. 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 pronounce the judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under O. 20 R. 1, there is clearly no adjournment of “the hearing” of the suit, for there is nothing more to be heard in the suit. In such a case O. IX, R. 7 could have no application and the matter would stand at the stage of O. IX, R.6 to be followed up by the passing of an ex parte decree making R. 13 the only provision in Order IX applicable.” -: 4 :- 8. Similar view has been taken by a learned Single Judge of this Court in Bihari Lal and another versus Jagar Nath Sharma and another, Latest HLJ 2001 (HP) 361, wherein it was again held that once the matter has been fixed for hearing of the case, then application under Order 9 Rule 7 would not be maintainable. 9. However, Mr. Tarun K. Sharma, learned counsel for the petitioners, brought out an interesting distinction between the cases cited and relied upon by the respondents and the case in hand. Admittedly, as pointed out above, arguments were heard by Mr. Vivek Khenal, the then Civil Judge (Junior Division), Court No. III, Hamirpur, on 09.02.2010 and the case fixed for judgment on 04.03.2010. The judgment was not pronounced on the said date and the learned Judge proceeded to hear the application under Order 9 Rule 7 CPC. In the meantime, transfers took placed and on 16.08.2010, Ms. Divya Jyoti Patyal took over as Civil Judge (Junior Division), Court No. III, Hamirpur. The contention raised by Mr. Tarun K. Sharma is that once the Presiding Officer was transferred, the matter had to be re-heard and even assuming that initially the application under Order 9 Rule 7 CPC was not maintainable, the same could not have been dismissed by the successor Judge, since she was required to hear arguments afresh before delivering judgment. 10. I am of the view that there is force in the arguments of Mr. Tarun K. Sharma. In case, the judgments of the Apex -: 5 :- Court and this Court cited above are perused carefully, it is apparent that the reasoning is that once a case is fixed for pronouncement of judgment, it cannot be said to be adjourned for further hearing and, therefore, an application under Order 9 Rule 7 CPC does not lie. However, if the Judge, for whatever reason, does not pronounce the judgment and the matter has to be re-heard whether on account of transfer, as in the present case, or on account of the fact that the Judge himself wants to re-hear the matter, the case is obviously again fixed for hearing. Once the case is again fixed for hearing, then the application under Order 9 Rule 7 CPC would be maintainable. Therefore, I am of the view that since the successor Judge, Ms. Divya Jyoti Patyal, could not have decided the main case without hearing arguments, the case had to be fixed for hearing and the application would be maintainable. 11. Order 5 Rule 15 CPC envisages that if the defendant is absent from his residence at the time when the service of summons is sought to be effected and there is no likelihood of his being found at the residence within a reasonable time, then the service can be effected on any adult member of the family. Therefore, two conditions have to be satisfied: firstly that the defendant was not available and secondly that there was no likelihood of his being found at the residence within a reasonable time. No doubt, the first condition is satisfied, but there is nothing in the report of the Process Serving Agency to -: 6 :- show that the second condition, i.e., that the defendant was not likely to be found at his residence within a reasonable time, was fulfilled. Therefore, service on the daughter-in-law/wife may not be proper service. 12. Without going into the niceties of the law, I feel that no party should be condemned unheard. Even assuming that the daughter-in-law / wife of the defendants had refused to accept the summons, I feel that another opportunity can be given to the defendants to contest the case, subject to payment of costs. Therefore, the ex-parte proceedings are set aside subject to payment of ` 3,000/- as costs. The parties are directed to appear before the learned trial Court on 13th December, 2010. On the said date, the present petitioners shall file their written statement and pay the costs. In case, they fail to pay the costs or file the written statement, then this petition shall be deemed to have been dismissed. 13. The petition is disposed of accordingly. (Deepak Gupta) Judge November 3, 2010 (rajni)