Abudl Shukoor vs Samad Pasha and another. Writ Petition 204679/2018 decided on 18 October 2019.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/305024/1/WP204679-18-18-10-2019.pdf
Relevant Paragraphs: 8. Insofar as the legal contention urged by the petitioner is concerned, the issue is no more res integra in view of the authoritative pronouncement of the Hon’ble Supreme Court in Rasiklal and Manickchand Dhariwal and Others vs. M.S.S.Food Products (2012) 2 SCC 196 wherein a contention was advanced before the Hon’ble Supreme Court that Order IX Rule 7 of CPC do not take away the right of the defendants to participate in further proceedings of the case if the defendants appear on subsequent dates before pronouncement of the judgment. The said plea was advanced based on the decisions of the various High Courts, but the Hon’ble Supreme Court in paragraph Nos.34 and 35 of the judgment negated the contentions and held as under:
’34. The contention, at the first blush, appears to be attractive but has no substance at all. In the first place, once the hearing of the suit is concluded; and the suit is closed for judgment, Order IX Rule 7 of the Code has no application at all. The very language of Order IX Rule 7 makes this clear. This provision pre- supposes the suit having been adjourned for hearing. The courts, time out of number, have said that adjournment for the purposes of pronouncing judgment is no adjournment of the ‘hearing of the suit’. On March 17,2005, the trial Court in the present case did four things namely, (i)closed the evidence of the Plaintiff as was requested by the plaintiff; (ii) ordered the suit to proceed ex-parte as Defendants failed to appear on that date; (iii) heard the arguments of the Advocate for the Plaintiff; and (iv) kept the matter for pronouncement of judgment on March 28, 2005. In view of the above, Order IX Rule 7 of the Code has no application at all and it is for this reason that the application made by the defendants under this provision was rejected by the trial Court.
35. Secondly, once the suit is closed for pronouncement of judgment, there is no question of further proceedings in the suit. Merely, because the defendants continued to make application after application and the trial Court heard those applications, it cannot be said that such appearance by the Defendants is covered by the expression “appeared on the day fixed for his appearance” occurring in Order IX Rule 7 of the Code and thereby entitling them to address the Court on the merits of the case. The judgment of Bombay High Court in Radhabai Bhaskar Sakharam AIR (1922) Bom 345 on which reliance has been placed by the learned senior counsel for the appellants, does not support the legal position canvassed by him. Rather in Radhabai Bhaskar Sakharam AIR (1922) Bom 345, the Division Bench of the Bombay High Court held that if a party did not appear before the suit was heard, then he had no right to be heard. This is clear from the following statement in the judgment:….….Until a suit is actually called on, a party is entitled to appear and defend. It may be that he is guilty of delay and if that is the case he may be mulcted in costs. But if he does not appear before the suit is heard, then he has no right to be heard….”
9. Even in this decision the observations made by the Hon’ble Supreme Court in Arjun Singh’s case has been reiterated in paragraph No.41 and the proposition laid down therein has been reproduced as under:
41. ….On the terms of Order IX, Rule 7 if the Defendant appears on such adjourned date and satisfies the Court by showing good cause for his non-appearance on the previous day or days he might have the earlier proceedings recalled- “set the clock back” and have the suit heard in his presence. On the other hand, he might fail in showing good cause. Even in such a case he is not penalized in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. Thus every contingency which is likely to happen in the trial vis-à-vis the non- appearance of the defendant at the hearing of a suit has been provided for and Order IX Rule 7 and Order IX, Rule 13 between them exhaust the whole gamut of situations that might arise during the course of the trial. If, thus, provision has been made for every contingency, it stands to reason that there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of justice. Mr. Pathak, however, strenuously contended that a case of the sort now on hand where a Defendant appeared after the conclusion of the hearing but before the pronouncing of the judgment had not been provided for. We consider that the suggestion that there is such a stage is, on the scheme of the Code, wholly unrealistic. In the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit: (1) where the hearing is adjourned or (2) where the hearing is completed. Where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Order XX, Rule 1 permits judgment to be delivered after an interval after the hearing is completed. It would, therefore, follow that after the stage contemplated by Order IX, Rule 7 is passed the next stage is only the passing of a decree which on the terms of Order IX, Rule 6 the Court is competent to pass. And then follows the remedy of the party to have that decree set aside by application under Order IX, Rule 13. There is thus no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the lines of Order IX Rule 7……
In the light of the above settled proposition, the first contention urged by the petitioner is liable to be rejected.
Compiled by S.Basavaraj, Advocate, Daksha Legal.
Daksha Legal 