Arun B. Saharya, J.:— This revision petition under Section 115 of the Code of Civil Procedure, 1908, hereinafter referred to as the CPC, is directed against an order dated 27th of May, 1989 made by Shri G.S Dhaka, Additional District Judge, Delhi, dismissing the petitioner's application under Order 9 Rule 7 CPC, to set aside a previous order made on 28th of February 1989 to proceed ex parte against him in a suit for recovery of money filed by the respondent plaintiff.
2. The suit was filed on 5th of December 1988. On the date fixed in the summons, the defendant who is a resident of village Sansa, District Ghazipur, UP, appeared through counsel and sought time to file his written statement and the case was adjourned to 28th of February 1989. On this day, an order was made to proceed ex parte against the petitioner defendant as no one appeared for him nor written statement was filed upto 2.30 PM and the Court adjourned the suit to 7th of April 1989 for ex parte evidence of the plaintiff. Before the adjourned date of hearing, on 31st of March 1989 the defendant made an application under Order 9 Rule 7, CPC, and prayed that the ex parte order dated 28th of February 1989 be set aside and he be allowed to file the written statement and contest the case on merits.
3. In the application, in paragraph 2, the defendant explained the cases for the previous non-appearance of his counsel as follows:
“That on 28.21.989 defendant's Advocate had a case in Delhi High Court and was hoping to reach Tis Hazari Court by 12.00 noon. After finishing his work in High Court while coming to Tis Hazari, Car of the Advocate broke down on the Fly-over at the back of the I.T.O and it was not possible to abandon the car there, as it is very fast moving traffic area. It took quite a time in arranging her for toeing the Car to the nearest possible Car Garage which was 3-4 kilometer away near Delhi Gate. After decamping the car Advocate made a fervent hurry towards Tis Hazari which turned out be futile one as the Id. court had already made orders as to the ex-parte proceedings and fixed the date as 7-4-989 for ex parte evidence of the plaintiff”
4. The trial court has found fault with the above explanation on four counts. First, the defendant himself did not appear and his absence has not been explained. Secondly, if the defendant's Advocate was busy that day in the High Court, he should have arranged for a “proxy counsel” to appear but he did not do so. Thirdly, the application under Order 9 Rule 7, CPC, was filed nearly a month after the ex parte order when, according to the trial court, “the limitation for filing of the application was going to expire” Fourthly, the written statement was not ready on 28th of February 1989, nor was it ready when the application was filed nor even upto the day of hearing of the application under Order 9 Rule 7. On the basis of these reasons the trial court reached the conclusion that the “non-appearance on 28.2.89 was intentional and deliberate in order to delay the disposal of the suit” and the Court dismissed the application by the impugned order.
5. It appears to me that the trial court was too obsessed with the delay in disposal of the suit. The court overlooked the fact that the defendant is a resident of a far off place in a village in District Ghazipur in U.P This is apparent from the adress stated in the plaint itself. It would be unreasonable to expect his personal presence at every hearing when he has engaged an Advocate for this purpose. Next, the Advocate attended to his work in the High Court and he was on his way to the Court to appear in this case on the fateful day when his car broke down. He has explained in detail in para 9 of the application the awkward position in which he was stranded on the road that day. In such a situation, he could not be expected to arrange for appearance through a “proxy counsel”. Further, it appears that the trial court was under an erroneous impression that limitation of a period of one month was prescribed for an application under Order 9 Rule 7, CPC, and on this misconception the trial court erred in drawing an inference against the petitioner on the ground that the application was filed only when the period of limitation was going to expire. Under the Limitation Act no period is prescribed for filing such an application. Under Order 9 Rule 7, CPC, the defendant is allowed to file an application “at or before” the next date of hearing and if he assigns good cause for his non-appearance on the previous day of hearing the Court may set aside the order proceeding ex-parte. (See: Delhi Development Authority v. Shanti Devi and another, AIR 1982 Delhi 159), Lastly, the trial court based its conclusion on the ground of ‘delay’ in the preparation of the written statement. Even if the written statement was not ready, that fact, by itself, does not justify the conclusion that the non-appearance of the defendant on 28th of February 1989 was intentional and deliberate in order to delay the disposal of the suit. Order 9 Rule 7, CPC, is a procedural provision. The Rules of Procedure designed to advance justice and should be so interpreted as not to make them penal in their operation. No doubt, the defendant has to show good cause for his previous non-appearance to derive the benefit of this provision. The words, ‘good cause’ in this Rule should be liberally construed in order to advance the cause of justice rather then to thwart it by permanently precluding a party from defending the suit merely on account of non-appearance of his Advo cate on a particular date. (See: East India Cotton Manufacturing Co. Ltd.… v. Shri S.P Gupta…., 28 (1985; DLT 22). In the present case, just one adjournment had been taken by the defendant to file the written statement. The subsequent failure of the defendant to file his written statement with the application under Order 9 Rule 7, CPC, or to present it at the time of the hearing of the application cannot be taken into consideration to test the cause for non-appearance of the defendant's counsel on the 28th of February, 1989. The trial court was not justified in drawing an inference against the defendant on a consideration of these matters. In any event, the suit was at its initial stage and the delay in the filing of the written statement by the defendant could be adequately compensated by payment of costs to the plaintiff.
6. For these reasons, it is found that the defendant, by the explanation given in para 2 of the application, did show good cause for his nonappearance and he was entitled to be heard as if he had appeared on that day; and that the trial court has acted in the exercise of its discretion illegally and also with material irregularity in dismissing the defendant's application under Order 9 Rule 7, CPC, by the impugned order. Consequently, the order dated 27th of May 1989 and the proceedings held thereafter are set aside. The defendant shall be allowed to file his written statement, subject to payment of Rs. 500/- as costs, on the next day of hearing in the suit. The parties are directed to appear before the trial court further proceedings on 20th of October 1989.
7. The Revision Petition is, accordingly, allowed. No costs.