KARTAR CHAND Vs. GIAN CHAND

JUDGEMENT

(1.) SHRI Gian Chand, respondent herein, has filed a suit for permanent prohibitory injunction restraining the petitioner -defendant from forcibly evicting him from house No. 462 situate at New Basti Jammu, which is pending disposal in the Court of City Judge Jammu. On May 22, 1989 petitioner -defendant absented himself and the court ordered for initiating ex -parte proceedings against him. On the next date of hearing i.e. 3.6.1989 there was strike in the court and no body appeared, On subsequent date of hearing i.e. 3.8,1989 counsel for the petitioner -defendant appeared and sought time for fitting application for setting aside ex -parte proceedings. Thereafter petitioner filed such application and the learned City Judge vide order dated November 15.1989 impugned in this case, rejected the said application mainly on the ground that application was time barred, being filed after 30 days. Aggrieved by that order the petitioner has come up in revision before this Court.

(2.) I have heard the learned counsel for the parties. Order 9 Rule 7C.P.C. is the relevant provision for guidance of Courts for disposal of -such matters. It provides that the defendant can at or before hearing fixed in the case appear and assign good cause for his previous non -appearance and the court can on such terms as it may deem proper allow the prayer. Firstly it should be noted that there is no period of limitation provided for filing application under above said provision of law. The only ground on which defendant can avail remedy under Order 9 Rule 7 is to show good cause for his or his counsels non -appearance on the date fixed in the case It appears from record that the counsel for the defendant appeared before the trial court on the next date i.e.

(3.) :8.1989 on which date he sought time for filing application for setting aside ex -parte proceedings. He however filed such application on Aug. 21, 1989 pointing out that the Ëœdefendant was confined to bed because of illness and was not in a position to move out and his counsel was busy in the High Court and could not appear in time.As pointed out above defendant was only required to show good cause for his non -appearance in order to invoke the provisions of Order 9 Rule 7 CPC. He has given reasonable excuse for the same and his bonafides could also be inferred from the fact that his counsel appeared on the next date of hearing fixed in the case Learned City Judge erred in holding that the application was time barred and as such he was not entitled to the relief under Order 9 Rule 7 CPC. It further comes out from record that the case is still pending and at its initial stage. 3. For the aforesaid reasons this petition is allowed and the order impugned set aside. Learned counsel for the parties shall appear before the Trial Court for further proceedings on September 9, 1991.