# Kailash Nath and another Revisionists v. Rajiv Ratan

- **Citation:** (2004) 2 ILRA 637
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-07-06
- **Case number:** Civil Revision No.716 of 1988
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-nath-and-another-revisionists-v-rajiv-ratan-40290
- **Pages:** 4

## Headnote

Code of Civil Procedure, 1908-0.IX Rr. 6
and
7-
Application
under-
Maintainability-
Non
appearance
of
defendant on date of hearing-Ex parte
order- Before passing of exparte order
and before delivery of judgment on same
date and moved an application under 0.9
R. 7, C.P.C. for setting aside order of
proceed case ex parte- Application, held,
maintainable.

In the present case, the court passed an
order to proceed exparte against the
defendant, but before the judgment
could
be
delivered,
the
defendant
appeared and moved an application,
which was maintainable and was rightly
allowed by the court below. Para 9

In Arjun Singh case, the court proceeded
exparte against the defendant and fixed
a
date
for
delivery
of
judgment.
Subsequently, the defendant moved an
application for recall of the exparte
order. The Supreme Court held that the
provision of Order 9 Rule 7 CPC was not
attracted to a date fixed for delivery of
judgment and it was not a case of
adjourned hearing. In the present case
no date was fixed for delivery of
judgment. In fact after passing of the
exparte order and before delivery of
judgment, the defendant appeared on
the same date and moved an application.
Such
application
was
clearly
maintainable even under order 9 Rule 7
CPC. Para 10
Case law discussed:
AIR 1964 SC 993
AIR 1955 SC 425

## Text

http://www.allahabadhighcourt.nic.in
2 All] Kailash Nath and another V. Rajiv Ratan
637

9. The Board of Revenue is the
Apex authority under the U.P.Z.A. & L.R.
Act and in the facts and circumstances as
discussed above, I feel called to observe
that the Board of Revenue has only
skimmed the surface and has not delved
deeper into the substantiality of causes
and seemed to be beguiled into dismissing
the matter swayed by huge delay. Thus
non-application of mind to the relevant
factors whether the conduct of the
petitioner smacked of malafides or he was
indulging in any dilatory tactics to
protract final outcome or that the
explanation
offered
was
quite
unsatisfactory. As stated supra, the
impugned order is a cryptic order passed
without delving into the factors leading to
the
conclusions while
deciding the
condonation application in the instant
case. The order therefore lacks legitimacy
on pivotal aspects and cannot be sustained
in the eye of law.

10.

Accordingly,
the
petition
succeeds and is allowed and the impugned
order dated 2.11.1993 is quashed. While
relegating the matter to the Board of
Revenue for decision afresh, it is directed
that the Board of Revenue shall hear the
appeal on merit and decide the same
within two months from the date of
production of a certified copy of this
order.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 6.7.2004

BEFORE
THE HON'B LE TARUN AGARWALA, J.

Civil Revision No.716 of 1988

Kailash Nath and another ...Revisionists
Versus
Rajiv Ratan

 ...Respondent

Counsel for the Revisionists:
Sri Vijai Bahadur

Counsel for the Respondent:
Sri Wasim Alam

Code of Civil Procedure, 1908-0.IX Rr. 6
and
7-
Application
under-
Maintainability-
Non
appearance
of
defendant on date of hearing-Ex parte
order- Before passing of exparte order
and before delivery of judgment on same
date and moved an application under 0.9
R. 7, C.P.C. for setting aside order of
proceed case ex parte- Application, held,
maintainable.

In the present case, the court passed an
order to proceed exparte against the
defendant, but before the judgment
could
be
delivered,
the
defendant
appeared and moved an application,
which was maintainable and was rightly
allowed by the court below. Para 9

In Arjun Singh case, the court proceeded
exparte against the defendant and fixed
a
date
for
delivery
of
judgment.
Subsequently, the defendant moved an
application for recall of the exparte
order. The Supreme Court held that the
provision of Order 9 Rule 7 CPC was not
attracted to a date fixed for delivery of
judgment and it was not a case of
adjourned hearing. In the present case
no date was fixed for delivery of
judgment. In fact after passing of the
exparte order and before delivery of
judgment, the defendant appeared on
the same date and moved an application.
Such
application
was
clearly
maintainable even under order 9 Rule 7
CPC. Para 10
Case law discussed:
AIR 1964 SC 993
AIR 1955 SC 425

(Delivered by Hon'ble Tarun Agarwala, J.)

1. This revision has been filed by the
plaintiff challenging the correctness of the
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
638
order passed by the Judge Small Cause
Court
allowing
the
defendant's
application for setting aside the exparte
order.

2. In order to appreciate the
controversy involved in the present case,
it is necessary to narrate the brief facts of
this case. It transpires that 21.5.1987 was
fixed for evidence, on which date the
defendant did not appear and the plaintiff
was present. Accordingly, the court
passed an order to proceed exparte against
the defendant. It further transpires that the
court proceeded to hear the case and in
support of his case, the plaintiff filed his
affidavit as evidence. Before the judgment
could
be
delivered,
the
defendant
appeared and moved an application along
with an affidavit praying that the order
directing the case to proceed exparte be
recalled in the interest of justice. An
objection on this application was filed by
the plaintiff and the matter was adjourned
to 4th July 1988 for disposal of the
defendant's application. On 4.7.1988, the
defendant's application was allowed and
the order dated 21.5.1987 directing the
case to proceed exparte against the
defendant was set aside.

3. The correctness of this order has
been challenged by the plaintiff in this
revision.

4. Heard Sri Vijay Bahadur, the
learned counsel for the plaintiff. No one
appeared on behalf of defendant.

5. The learned counsel for the
plaintiff submitted that once the order had
been passed to proceed exparte and only
the judgment was to be delivered, the
application of the defendant to set aside
the exparte order was premature and was
also not maintainable inasmuch as only an
application to set aside the decree, if any,
could be made under Order 9 Rule 13
CPC after the decree was passed. In
support of his submission the learned
counsel placed reliance on a decision of
the Supreme Court in Arjun Singh Vs.
Mahendra Kumar, AIR 1964 SC 993.

6. In my view, the contention of the
learned counsel for the plaintiff, though
attractive, is not applicable in the present
facts and circumstances of the case.

7. On 21.5.1987, the court ordered
to proceed exparte due to the absence of
the defendant. This order had been passed
under Order 9 Rule 6 CPC, which reads
as under.
"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;"

Order 9 Rule 7 reads as under.

"7. 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 had appeared on the day
fixed for his appearance."

In Sangram Singh Vs. Election
Tribunal, Kotah, AIR 1955 SC 425, the
provision of Order 9 Rule 6 and Rule 7
were explained and analyzed by the
Supreme Court as under:
"When the defendant has been
served
and
has
been
afforded
an
http://www.allahabadhighcourt.nic.in
2 All] Kailash Nath and another V. Rajiv Ratan
639
opportunity of appearing, then, if he does
not appear, the Court may proceed in his
absence. But, be it noted, the Court is not
directed to make an 'ex parte' order.
Of course the fact that it is proceeding
'exparte' will be recorded in the minutes
of its proceedings but that is merely a
statement of the fact and is not an order
made against the defendant in the sense of
an 'ex parte decree or other 'ex parte'
order which the Court is authorised to
make. All that R.6 (1)(a) does is to
remove a bar and no more. It merely
authorises the Court to do that which it
could not have done without this
authority, namely to proceed in the
absence of one of the parties."

The Supreme Court further held as
what the court could do after proceeding
under Order 9 Rule 6 and held,
"On the other hand, if it is for final
hearing, an 'ex parte' decree can be
passed, and if it is passed, then O.9 R.13
comes into play and before the decree is
set aside the Court is required to make an
order to set it aside'. Contrast this with
R.7 which does not require the setting
aside of what is commonly, though
erroneously, known as " the 'ex parte'
order".

No order is contemplated by the
Code and therefore no order to set aside
the order is contemplated either. But a
decree is a command or order of the Court
and so can only be set aside by another
order made and recorded with due
formality.

Then comes R.7 which provides that
if at ' an adjourned hearing' the defendant
appears and shows good cause for his
"previous non-appearance", he can be
heard in answer to the suit:

"as if he had appeared on the day
fixed for his appearance."
This cannot be read to mean, as it has
been by some learned Judges, that he
cannot be allowed to appear at all if he
does not show good cause. All it means is
that he cannot be relegated to the position
he would have occupied if he had
appeared."

8. From the aforesaid, it is clear that
on the date fixed, if the defendant does
not appear, the court may proceed in his
absence, but it does not stop the defendant
from not appearing subsequently. If the
defendant appears subsequently after
passing of the ex parte order and shows
sufficient cause for his previous nonappearance, the court can hear the
defendant and permit him to appear.

9. In the present case, the court
passed an order to proceed exparte against
the defendant, but before the judgment
could
be
delivered,
the
defendant
appeared and moved an application,
which was maintainable and was rightly
allowed by the court below.

10. The contention of the learned
counsel
for
the
plaintiff
that
the
application was not maintainable and the
application could only be moved under
Order 9 Rule 13 CPC after the decree was
passed is incorrect. In the event, the court
after proceeding ex parte against the
defendant had delivered the judgment or
fixed a date for delivery of judgment, in
that case, and in that eventuality, the
provision of Order 9 Rule 13 CPC would
come into play and the provision of Order
9 Rule 7 CPC would not be attracted. The
decision cited by the learned counsel in
Arjun Singh case (supra) is not attracted
to the present facts. In Arjun Singh case,
the court proceeded exparte against the
defendant and fixed a date for delivery of
judgment. Subsequently, the defendant
moved an application for recall of the
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
640
exparte order. The Supreme Court held
that the provision of Order 9 Rule 7 CPC
was not attracted to a date fixed for
delivery of judgment and it was not a case
of adjourned hearing. In the present case
no date was fixed for delivery of
judgment. In fact after passing of the
exparte order and before delivery of
judgment, the defendant appeared on the
same date and moved an application.
Such application was clearly maintainable
even under order 9 Rule 7 CPC.

11. In view of the aforesaid, the
revision fails and is dismissed. However,
there shall be no order as to cost.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.7.2004

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Revision No.338 of 1989

Ashok Kumar and another
...Applicant
Versus
Din Dayal Badal

...Opposite Party

Counsel for the Applicants:
Sri B.N. Agarwala

Counsel for the Opposite Party:
Sri Virendra Kumar

U.P. Urban Buildings (Regulation of
letting, Rent and Eviction) Act, 1972-
Sections 30 (2) and 20 (4)-Deposit made
under S. 30 (2) by tenant- validity-Death
of original land lord- Tenant did not
know
to
whom
rent
payable-Thus
deposit under S. 30 (2), held to be a valid
deposit-No arrears of rent due on date of
notice of demand- Tenant not in arrears
of rent of more than four months under
S. 20 (4)-suit for eviction by heris, held,
not maintainable.

In the present case, the deposit which
has been made by the tenant was made
under section 30 (2) of the Act and not
under section 30 (1) of the Act. The
tenant had categorically stated in his
application that the landlord had died
and that he did not know as to whom the
rent should now be paid. Thus, the
deposit of rent under section 30(2) of
the Act, was a valid deposit. The
contention of the learned counsel for the
applicant that the deposit was made
under section 30 (1) is wholly incorrect.
Consequently, the judgment cited by the
learned counsel are distinguishable and
are not applicable to the present case.
Since a valid deposit had been made by
the tenant, there were no arrears of rent
on the date when the notice of demand
was served. Consequently, the tenant
was not in arrears of rent of more than
four months under section 20(4) of the
Act and could not be evicted from the
premises in question.

Para 5
Case law discussed:
1995(2) ARC 360
1984 (2) ARC 324
1981 ARC 506

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The original landlord died on
11.11.1987. The tenant remitted the rent
by money-order, which was returned with
the remark that the original landlord had
died. Accordingly, the tenant filed an
application under section 30 of the U.P.
Act No.13 of 1972, stating therein that the
original landlord had died and that it was
not known as to whom the rent should be
sent. Notice on this application was sent
to the heirs of the landlord, who refused
to accept the summons and, accordingly,
the Munsif permitted the tenant to deposit
the rent under section 30 of the Act.
Thereafter, the heirs of the original
landlord sent a notice dated 9.8.1988
to the tenant demanding arrears of rent
and further terminated the tenancy.
This notice was duly served upon the