Sharma, J. - (1.) The crucial legal question which arises for consideration in this revision is as to what is the object of the procedure laid down by O.9 of the CPC? To do substantial justice or to entrap the defendant in the technicalities of the procedure?
(2.) The question has emerged in the following circumstances : (i) Smt. Bhani an illiterate widow aged 65 years, was a defendant in a suit for permanent injunction instituted by plaintiff Mahavir Prasad in the trial Court. According to facts projected in the revision, summons was not served upon her but her counsel Shri Islammuddin Gauri advised here to put appearance and filed memo of appearance on her behalf. Neither her signatures were obtained on vakalatnama nor any vakalatnama was filed on behalf of her by her counsel. The suit was not properly defended, and her counsel without informing her pleaded no instructions. Thereupon she was proceeded ex parte on 21.1.1991. On 2.11.1995, knowing for the first time about ex parte proceedings she moved an application u/O.9 R. 7 CPC before the trial Court for setting aside the ex parte order and requested the Court to provide her an opportunity to file written statement and to defend the suit. (ii) The trial Court vide its order dated 29.1.96, dismissed the application. The said order has been assailed in this revision.
(3.) Before assessing the merits of the petition, it is necessary to examine the statutory provisions. Order 9 R. 7 CPC provides that "where the Court has adjourned the hearing of the suit ex parte and assigned 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 had appeared on the day fixed for his appearance.";