MENOMAL KUSHALDAS SINDHI Vs. GANGADHAR PANNALAL

JUDGEMENT

(1.) The applicant-plaintiff filed a suit on 20-6-1980 for possession of certain premises situated at Plot No. 72 in Ward No. 31 at Nagpur. The defendant was in possession of these premises as a lessee of the open plot. Summons was issued to the defendant and he along with his counsel appeared before the trial Court on 12-9-1980 which was the next date fixed for hearing. On that day, the defendant applied for time to file written statement and the same was granted. The case was then adjourned to 13-10-1980. On that date again another application for grant of time for filing written-statement was made and the same was also granted. Case was then adjourned to 11-11-1980. Yet a third application for time to file written-statemant was moved before the trial Court and it was also granted. Then the case was fixed on 26-11-1980. In the meanwhile it appears that whithout filing a written-statement, the defendant raised a plea under section 22 (1) (a) of the Maharashtra Slum Areas (Improvement, Clearance and Re-development) Act, 1971, praying for dismissal of the suit. The case thereafter went on and on 13-3-1981, the defendant filed a purshis that he did not want to press his application for dismissal of the suit. Case was then adjourned to 13-4-1981. On that date again the defendant came up with an application for time to file written-statement. This application was resisted by the plaintiff and the plaintiff prayed that the application for grant of time be dismissed and the suit be decreed under Order 8, Rule 5 of the Code of Civil Procedure as no written-statement was filed. The Court rejected the defendant's application for grant of time and passed an order on the plaint that the defendant did not file written-statement and the plaintiff was required to prove his case by affidavits. The case was adjourned to 30-10-198l. It appears that in the meanwhile on 20th April, 1981 the defendant filed an application under Order 9, Rule 7 of the Code of Civil Procedure for setting aside the ex parte order. That application was opposed by the plaintiff. However, the learned Judge found that the order passed on 13-4-1981 was an ex parte order and since sufficient cause was shown, the said order was set aside and the defendant was allowed to file his written statement and the same was admitted on record. Against that order, the present revision application has been filed.

(2.) Shri R. D. Chaudhary, the learned counsel for the applicant, contended that the order passed on 13-4-1981 was not an ex parte order. In fact, the Court had proceeded under Order 8, Rule 5 of the Code of Civil Procedure for pronouncement of judgment as no written statement was filed by the defendant. According to him, the application filed by the defendant under section 151 of the Code of Civil Procedure invoking the inherent powers of the Court was not maintainable and the Court could not undo what it has done on 13-4-1981. In other words, Shri Chaudhari contended that once the Court proceeds under Order 8, Rule 5 to pronounce judgment as the defendant did not file his written-statement, it cannot allow the defendant to file a written-statement on the ground that the order pas ed earlier was an ex parte order. He submitted with reference to the endorsement that the order in question can never be construed as an ex pane order and the learned Judge was wrong in treating it as one.

(3.) On behalf of the non-applicant, Shri Shareef, the learned counsel, submitted that the order, which was passed by the learned Judge on 13-4 1981, was an ex parte order and the same could be set aside on a sufficient cause being shown under Order 9, Rule 7 of the Code of Civil Procedure. He submitted that merely because the expression "ex parte order"does not appear anywhere, it is not decisive of the matter and the substance has to be seen. He then relied upon the circumstances and contended that the learned Judge was right in setting aside the ex parte order. He further contended that the Court had ample powers to set aside the order which was passed on 13-4-1981 for the reasons set out in the application under Order 9, Rule 7 of Code of Civil Procedure. He, therefore, submitted that this Cotrt may not interfere with the said order.