Case Note & Summary
The case arises from a partition suit (O.S.No.96 of 2011) filed by the plaintiff, Smt. Saraswathi, against several defendants, including the fourth defendant, N. Malligarjunan. The fourth defendant was set ex-parte on November 21, 2016 for failing to file a written statement. After about two years, he filed an application under Order IX Rule 7 CPC (I.A.No.625 of 2019) seeking to set aside the ex-parte order, claiming he was bed-ridden due to high blood pressure and could not instruct his counsel. The Trial Court dismissed the application on January 7, 2020, noting that the fourth defendant had not produced any medical records to substantiate his illness. Aggrieved, the fourth defendant filed a Civil Revision Petition under Article 227 of the Constitution of India before the Madras High Court. The High Court, after hearing both sides, observed that the Trial Court had adopted a hyper-technical approach. The court emphasized that Order IX Rule 7 CPC should be liberally construed to allow a party to participate in the proceedings, especially when the trial had not yet commenced and no prejudice would be caused to the plaintiff that could not be compensated by costs. The court set aside the Trial Court's order and allowed the application, subject to the fourth defendant paying costs of Rs. 2,000 to the plaintiff. The court directed the Trial Court to permit the fourth defendant to file his written statement within two weeks and to proceed with the suit expeditiously.
Headnote
A) Civil Procedure Code - Order IX Rule 7 - Setting Aside Ex-Parte Order - Liberal Construction - The court held that an application under Order IX Rule 7 CPC should be considered liberally to allow the defendant to participate in the proceedings, especially when the trial has not yet commenced and no prejudice is caused to the plaintiff. The Trial Court's dismissal on hyper-technical grounds was set aside. (Paras 8-10) B) Civil Procedure Code - Order IX Rule 7 - Delay in Filing Application - The court noted that the application was filed two years after the defendant was set ex-parte, but since the trial had not commenced and the plaintiff could be compensated by costs, the delay was not fatal. (Para 9) C) Civil Procedure Code - Order IX Rule 7 - Absence of Medical Evidence - The court observed that the defendant's reason of illness (high blood pressure) was not supported by medical records, but the court still allowed the application in the interest of justice, subject to payment of costs. (Paras 8-10)
Issue of Consideration
Whether the Trial Court was justified in dismissing the application under Order IX Rule 7 CPC filed by the fourth defendant to set aside the ex-parte order, on the ground that no medical evidence was produced to support the reason for absence
Final Decision
The High Court allowed the Civil Revision Petition, set aside the order dated January 7, 2020 passed by the District Munsif, Udumalpet in I.A.No.625 of 2019 in O.S.No.96 of 2011, and allowed the application subject to payment of costs of Rs. 2,000 to the plaintiff. The Trial Court was directed to permit the fourth defendant to file his written statement within two weeks and to proceed with the suit expeditiously.
Law Points
- Order IX Rule 7 CPC should be liberally construed to allow a defendant to participate in proceedings if no prejudice is caused to the plaintiff
- especially when trial has not commenced
- and hyper-technical approach should be avoided
