9911796707
TMI Blog2002 (4) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... tment of the respondents alleging the respondents to be in arrears with effect from 1.5.1996. On 2.5.1998 the defendants/respondents and their counsel failed to appear in the trial court and, therefore, the trial court directed the suit to proceed ex-parte against the defendants. On 29.5.1998 the defendants moved an application under Order 9 Rule 7 of the CPC praying for setting aside of the ex-parte order on the ground that their counsel was prevented from appearing in the court on account of having met with an accident. On 9.9.1999 the trial court allowed the defendants application recording the finding that the counsel for the defendant had good and sufficient cause for previous non- appearance in the court and that the non-appearance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiffs (respondents in the High Court), the High Court directed the trial court to proceed to dispose of the suit as early as possible and latest by 31.3.2000. The plaintiffs filed the present petition seeking special leave to appeal. On 28.2.2000, while allowing the leave to the appellants, it was directed that the impugned order of the High Court dated 14th October, 1999 should remain stayed. However, the Court added that the stay will not in any way affect the direction of the High Court regarding the disposal of the suit by 31st March, 2000. The result of the interim order was that the order of the trial court dated 9.1.99 putting the defendants on terms came into operation and as the defendants failed to comply with the conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n material terms and conditions of the lease and therefore, the obligation of the defendants to pay rent remains suspended and they are not liable to pay the rent; while according to the plaintiffs they have placed the defendants in peaceful and full possession of the tenancy premises and nothing had remained to be done by them, and therefore, they are entitled to the recovery of rent and maintenance charges as agreed. During the courses of hearing, the learned counsel for the defendant- respondents submitted that if this Court is inclined to sustain the order of the High Court, in that event in order to do complete justice in the case this Court ought to set aside the judgment and decrees dated 31.3.2000 passed by the trial court which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant appear 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. Power in the Court to impose costs and to put the defendant-applicant on terms is spelled out from the expression Upon such terms as the Court directs as to costs or otherwise . It is settled with the decision of this Court in Arjun Singh v. Mohinder Kumar and Ors., AIR (1964) SC 993, that on an adjourned h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ping in view the conduct of the defendant-applicant, the Court may direct that though the ex-parte proceedings are being set aside, the defendant must file the written statement within an appointed tune or recall for cross examination at his own cost and expenses the witnesses examined in his absence or that the defendant shall be allowed not more than one opportunity of adducing his evidence and so on. How the terms are to be devised and made a part of the order would depend on the facts and circumstances of a given case. In short, the court cannot exercise its power to put the defendant/applicant on such terms as may have the effect of pre-judging the controversy involved in the suit and virtually decreeing the suit though ex-parte order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment and decree of the trial court based on the ex-parte order dated 2.5.98 are set aside. The interim order of this Court dated 28.2.2000 shall also stand vacated. The suit shall stand restored on the file of the trial court. 2. As the plaintiffs have secured the possession of suit premises and the defendants-respondents have given up their right of restitution so far as the possession of the premises are concerned, the suit filed by the plaintiff-appellants shall now be treated as a money claim for recovery of arrears as claimed in the plaint as also recovery of arrears pending suit for the period expiring on 1.11.2000, the date on which the plaintiff- appellants have secured possession over the tenancy premises. 3. Such of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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