- (1.) HEARD learned counsel for the parties and also perused the record.
(2.) BY means of this petition filed under Article 226 of the Constitution of India, petitioners pray for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 5-11-1997 passed by respondent No. 2 dismissing the application filed by the petitioners under Order-IX Rule 7 C. P. C. and the order dated 11-11-1999 whereby the revision filed by the petitioners against the order dated 5-11-1997 has been dismissed by the Court below. The facts of the case giving rise to the present petition in brief are that the respondent No. 1 filed a suit No. 1245 of 1993 for permanent injunction against the petitioners and others. In the said suit 19-5- 1994 was fixed for hearing. On the said date, only plaintiff-respondent appeared and the petitioner- defendant did not appear in the Court. The trial Court consequently passed an order to proceed ex parte and fixed 15-7-1994 for hearing. On 15-7-1994, respondent-plaintiff produced his ex-parte. Thereafter it was on 6-8-1994, an application under Order-IX Rule-7 C. P. C. was filed. Said application filed by the petitioners was objected to by the respondent No. 1 and was ultimately dismissed by the trial Court by its judgment and order dated 10-5-1995. on 6-8-1994, the case was fixed for ex-parte arguments. On the said date, petitioners filed two applications one for adjournment of the case and the other under Order IX Rule 7 C. P. C. The application for adjournment of the hearing was allowed and 11-8-1994 was fixed for disposal of application under Order IX Rule-7 C. P. C. It was on 11-8-1994, petitioners moved another application for setting aside the order dated 15-7-1994. it was on 10-5-1995, an application under Order IX Rule-7 C. P. C. was heard and the trial Court dismissed the said application holding that application filed by the petitioners was legally not maintainable. Against the order dated 10-5-1995, a revision was filed by the petitioners which was also dismissed by the Revisional Court on 13-4-1996 and the orders passed by this trial Court to proceed ex parte under order IX Rule 6 (1) (a) C. P. C. became final. It is stated that on 21-5-1997 an application moved by the plaintiff respondent for amendment of the plaint. The said application was allowed and amendment was also incorporated in the plaint. It was on 16-7-1997 petitioners again moved a fresh application under order IX Rule 7 with a request to set aside the order to proceed ex parte, to permit them to file additional written statement and to decide the suit on merits. After hearing the parties, the said application was dismissed by the Trial Court by its judgment and order dated 5-1-1997. The validity of the said order was challenged by the petitioners before the Revisional Court which also upheld the validity of the order passed by the trial Court and dismissed the revision on 11-11-1999, hence the present petition. Learned counsel for the petitioner vehemently urged that the applications filed by the petitioners under Order IX Rule 7 C. P. C. were legally maintainable, the courts below have acted illegally in rejecting the application on the ground that the order dated 10-5-1994 operates as res judicata, therefore, according to him, order passed by the courts below are liable to be set aside.
(3.) I have considered the submission made by the learned counsel for the petitioner. Order-IX Rule-6 Civil Procedure Code reads as under: (Only relevant portion quoted): Rule-6: "procedure when only plaintiff appears - (1) where the plaintiff appears and the defendant does not appear when the suit is called on for hearing then, - (a) when summons duly served - if it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte. " In this case admittedly the summons were duly served upon the defendants petitioners. The Court was therefore rightly passed the order on 19-5-1994 to proceed ex parte under the aforesaid Rule. The next date fixed for hearing after 19-5-1994 was 15-7-1994. Order-IX Rule-7 C. P. C. reads as under: "procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance - where the court has adjourned the hearing of the suit ex parte and the defendant, at or before such hearing appears and assigns good cause for his previous non-appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he appeared on the day fixed for his appearance. ";