Case Note & Summary
The petitioner, Abdul Shukoor, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging an order dated 13.11.2018 passed by the II Additional Civil Judge, Raichur, in O.S. No. 75/2016, rejecting his application I.A. No. IX filed under Order IX Rule 7 of the Code of Civil Procedure, 1908 (CPC). The respondent No.1, Samad Pasha, had filed a suit for declaration and permanent injunction against the petitioner and respondent No.2 (Commissioner, Raichur Urban Development Authority) in O.S. No. 53/2016, which was returned for presentation before the proper court on 16.03.2016 and subsequently re-filed as O.S. No. 75/2016. The petitioner claimed that he was not served with summons and that the suit proceeded ex parte against him. After the suit was posted for judgment, the petitioner filed I.A. No. IX under Order IX Rule 7 CPC to set aside the ex parte order. The trial court rejected the application on the ground that it was not maintainable after the suit was reserved for judgment. The High Court framed the issue: whether an application under Order IX Rule 7 CPC could be filed after the suit is posted for judgment. The court analyzed the scope of Order IX Rule 7 CPC, which allows a defendant to show cause against an ex parte order when the suit is still pending. Once the suit is reserved for judgment, the court becomes functus officio and cannot entertain such an application. The proper remedy for the petitioner would be to file an application under Order IX Rule 9 CPC (if the suit is dismissed) or Order IX Rule 13 CPC (if a decree is passed ex parte). The High Court held that the trial court's order was correct and dismissed the writ petition, finding no grounds for interference under Article 227 of the Constitution.
Headnote
A) Civil Procedure - Order IX Rule 7 CPC - Application after suit posted for judgment - Maintainability - The petitioner filed an application under Order IX Rule 7 CPC after the suit was reserved for judgment, seeking to set aside an ex parte order. The trial court rejected the application as not maintainable. The High Court held that once the suit is posted for judgment, the court becomes functus officio and cannot entertain an application under Order IX Rule 7 CPC. The proper remedy would be under Order IX Rule 9 CPC or Order IX Rule 13 CPC, as applicable. The petition was dismissed. (Paras 1-5) B) Civil Procedure - Order IX Rule 7 CPC - Scope - Order IX Rule 7 CPC applies only when the suit is pending and not after it is reserved for judgment. The court ceases to have jurisdiction to set aside an ex parte order once the judgment is reserved. (Paras 3-5)
Issue of Consideration
Whether an application under Order IX Rule 7 of the Code of Civil Procedure, 1908 (CPC) could be filed after the suit is posted for judgment.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order rejecting I.A. No. IX under Order IX Rule 7 CPC as not maintainable after the suit was reserved for judgment.
Law Points
- Order IX Rule 7 CPC
- application after judgment reserved
- maintainability
- Order IX Rule 7 vs Order IX Rule 9 CPC
- Article 227 Constitution of India
