HIMACHAL PRADESH HC: ORDER 9 RULE 7 CPC | APPLICATION FOR SETTING ASIDE EX-PARTE ORDER CAN BE ENTERTAINED ONLY IF FILLED BEFORE CONCLUSION OF ARGUMENTS

Recently, the Himachal Pradesh High Court in the case Surender Kaur v Shri Jagtendra observed while adjudicating on an application seeking to set aside an ex-parte order, observed that an application under Order 9 Rule 7 CPC can only be entertained if it is being filed before the conclusion of arguments.

The bench comprising of Justice Sandeep Sharma observed that after having perused provisions contained under Order 9 Rule 7 CPC, this Court finds that application for setting aside ex-parte order can only be entertained, if it is filed before the conclusion of the arguments. However, any application filled after the conclusion of the arguments is not maintainable and, in that eventuality, person being aggrieved on account of proceeded exparte order has a remedy to file appropriate proceedings under Order 9 Rule 7 CPC praying therein to set-aside ex-parte decree.

Further, the petitioner was aggrieved by rejection of his Order 9 Rule 7 application by the Civil Judge in a suit against him seeking mandatory injunction, restraining him from interfering with the suit land.

It was observed that the defendant (original plaintiff) informed the Court that the Petitioner was proceeded ex-parte after he put in appearance in the court on October 9, 2020, but failed to appear thereafter. Also, it was submitted that the application under Order 9 Rule 7 was moved post conclusion of final arguments, before pronouncement of final judgment.

The same application was dismissed by the High Court on the ground that it is not maintainable on account of its being filed after conclusion of the hearing.

Accordingly, the High Court concurred with the view taken by the civil court. Placing reliance on the Apex Court’s judgment in Arjun Singh v. Mohindra Kumar and Ors., it held that once case is finally heard and posted for judgment, application, if any, for setting aside ex-parte order is not maintainable.

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