2012 SCC ONLINE MP 3758 .

Rakesh Jain And Another v. Smt. Manisha Jain

Madhya Pradesh High Court (May 14, 2012)

CASE NO.

Writ Petition 202/2012

ADVOCATES

Petitioners by Shri Ashish Shrivastava, Advocate.

Respondent by Shri P.D Agarwal, Advocate.
JUDGES

Sujoy Paul, J.

ORDER
In this petition filed under Article 227 of the Constitution, the petitioners have
challenged the order dated 21/12/2011, whereby their application dated 22/11/2011
(Annexure-P/7) under Order 9 Rule 7 CPC is rejected by the Court below. The Court
below proceeded exparte in the matter on 12/10/2011 and posted the matter for
judgment . The petitioners preferred the said application after the date, when the Court
below reserved the matter for judgment .
2. The singular question needs to be decided is whether the application under Order 9
Rule 7 CPC is maintainable in the aforesaid factual backdrop. In Bhanu Kumar Jain
v. Archana Kumar [(2005) 1 SCC 787], the Apex Court in Para 16 held as under :-
“16. Order 9 Rule 7 of the Code postulates an application for allowing a defendant
to be heard in answer to the suit when an order posting a suit for exparte hearing was
passed, only in the event, the suit had not been heard; as in a case where hearing of
the suit was complete and the court had adjourned a suit for pronouncing the
judgment , an application under Order 9 Rule 7 wold not be maintainable. (See Arjun
Singh v. Mohindra Kumar) The purpose and object of Order 9 Rule 7 CPC of the
Code has been explained by this Court in Vijay Kumar Madan v. R.N Gupta
Technical Education Society and Ramesh Chand Ardawatiya v. Anil Panjwani”.
(Emphasis Supplied)
This judgment is based on various judgments of Supreme Court including AIR 1964
SC 993 (Arjun Singh v. Mohindra Kumar). In view of this judgment , the Court below

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has committed no error of law in disallowing the application under Order 9 Rule 7
CPC .
3. Shri Ashish Shrivastava, cited AIR 2007 SC 1889 (Lal Devi v. Vaneeta Jain).
4. I have considered the said judgment . In Para 15 of the judgment , the Apex Court
held as under :-
“15…….. It is true that in view of the law laid down by this Court in Arjun Singh
(supra) the learned District Judge could not have entertained an application under
Order IX Rule 7CPC ”.
In Para 16 of the judgment of Lal Devi (supra), the Apex Court held that in the
peculiar facts of this case, interference is made in the interest of justice.
5. Thus, the law laid down by the Apex Court way back 1964 in Arjun Singh case
(supra) is followed even in this judgment . It is noticed that the judgment in Bhanu
Kumar Jain (3 judges) has not been considered in Lal Devi's case (2 judges). Since,
ratio decidendi of Arjun Singh is consistently followed by Supreme Court in all the
judgments , I have no reason to entertain this petition. The interference in Lal Devi
was based on peculiar facts prevailing therein. The principle of law laid down is well
settled and applying that principle, the Court below has not committed any error of
law. In absence of any legal flaw or ingredient, on which interference can be made
under Article 227 of the Constitution, interference is declined.
6. Petition sans substance and is hereby dismissed. No costs.

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