JUDGMENT
Tarun Agarwala, J.
1. This revision has been filed by the plaintiff challenging the correctness of the order passed by the Judge Small Cause Court allowing the defendant’s application for setting aside the ex parte 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 ex parte 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 ex parte 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 ex parte 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 ex parte and only the judgment was to be delivered, the application of the defendant to set aside the ex parte 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 IX Rule 13. C.P.C. 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 v. 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 ex parte due to the absence of the defendant. This order had been passed under Order IX Rule 6, C.P.C. 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 IX 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.”
8. In Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425, the provision of Order IX 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 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 ‘ex parte’ 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 Rule 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.”
9. The Supreme Court further held as what the Court could do after proceeding under Order IX 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 Order IX Rule 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 Rule 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 Rule 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 could have occupied if he had appeared.”
10. 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 non-appearance and the Court can hear the defendant and permit him to appear.
11. In the present case, the Court passed an order to proceed ex parte 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.
12. The contention of the learned counsel for the plaintiff that the application was not maintainable and the application could only be moved under Order IX Rule 13, C.P.C. 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 IX Rule 13, C.P.C. would come into play and the provision of Order IX Rue 7. C.P.C. 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 ex parte against the defendant and fixed a date for delivery of judgment. Subsequently, the defendant moved an application for recall of the ex parte order. The Supreme Court held that the provision of Order IX Rule 7, C.P.C. 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 ex parte 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 IX Rule 7. C.P.C.
13. In view of the aforesaid, the revision fails and is dismissed. However, there shall be no order as to cost.