HEMALATHA Y.M. Vs. MANAGING DIRECTOR

JUDGEMENT

(1.) In this case, the petitioner has challenged the order on I.A. No. 3, dated 25-1-2012 in O.S. No. 284 of 2010 on the file the Civil Judge and JMFC, Nelamangala, whereby the application filed by the respondent-defendant under Order 9, Rule 7 of the Civil Procedure Code, 1908 has been allowed. The petitioner-plaintiff filed the above suit for permanent injunction restraining the defendant, its agents, henchmen, servants, etc., or anybody claiming under the defendant either from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff or from dispossessing the plaintiff from the said property. The defendant was placed ex parte on 28-10-2010. Thereafter, the plaintiff has let in his evidence. On 20-7-2011, the arguments on behalf of the plaintiff was heard and the case was posted for judgment on 2-8-2011. Since the Presiding Officer was on leave on the said day, the case was posted on 19-10-2011. On that day, learned Counsel for the plaintiff was absent. The case was posted for further arguments on 31-10-2011. On 31-10-2011, the defendant filed an application under Order 9, Rule 7 of CPC for setting aside the order dated 28-10-2010 placing it ex parte and to permit it to contest the suit on merit. The Court below by its order dated 25-1-2012 has allowed the said application. As noticed above, the plaintiff has called in question the validity of the said order in this case.

(2.) Sri Pundikai Ishwara Bhat, learned Counsel appearing for the petitioner-plaintiff would contend that when the case is posted for judgment, it is not open for the defendant to file an application under Order 9, Rule 7 of the CPC. In this connection, he has relied on the decisions of the Apex Court in Arjun Singh v Mohindra Kumar and Others , : 1964 AIR(SC) 993 and Rasiklal Manickchand Dhariwal and Another v M/s. M.S.S. Food Products , : 2012 SCW AIR(1101

(3.) On the other hand, Sri P.D. Surana, learned Counsel appearing for the respondent-defendant submits that though the case was posted for judgment on 2-8-2011, the Presiding Officer was on leave on that day. Therefore, the matter was posted on 19-10-2011. On that day, learned Counsel for the plaintiff was absent. Therefore, the Court below posted the matter for further arguments on 31-10-2011. On that day, the defendant has filed the aforesaid application to set aside the order dated 28-10-2010 placing the defendant ex parte and to permit it to contest the matter on merit. When the application was filed by the defendant under Order 9, Rule 7 of the CPC, the case was not posted for judgment. It is clear from the order sheet (Annexure-E) produced by the learned Counsel for the petitioner that the case was posted on 20-7-2011. On that day, learned Counsel for the plaintiff filed the written arguments. The case was posted for judgment on 2-8-2011. On 2-8-2011, since the Presiding Officer was on leave, the matter was posted again on 19-10-2011. On 19-10-2011, the Court below has recorded in the order sheet as under: