JAITUN B Vs. MOHAMMAD

JUDGEMENT

(1.) By this writ petition under Art. 227 of the Constitution of India, the defendant has approached this Court aggrieved with the order of the trial Court dated 8.12.2016, by which the petitioner's application under Order 9, Rule 7 read with Sec. 151 of the Civil Procedure Code has been rejected as not maintainable.

(2.) Learned counsel appearing for the petitioner submits that the trial Court has committed an error in holding that the application under Order 9, Rule 7 of the Civil Procedure Code was not maintainable at the final stage, whereas learned counsel for the respondent has supported the impugned order.

(3.) Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the matter was repeatedly fixed by the trial Court for examination of the defendant's witnesses but the said opportunity was not availed by the petitioner, therefore, on 18.11.2016 when neither the petitioner nor his counsel had appeared, the trial Court had proceeded ex-parte and heard the final arguments and reserved the case for judgment. Thereafter on 28.11.2016 the petitioner had filed an application under Order 9, Rule 7 read with Sec. 151 of the Civil Procedure Code for setting aside the ex-parte proceedings which has been rejected by the trial Court on the ground that since the case was already reserved for judgment, therefore, the application was not maintainable.