THUBDAN GOMPHEL NEGI v. RADHIKA NEGI

2024:HHC:9908

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CMPMO No.513 of 2024

Decided on: 18^thOctober, 2024

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Thubdan Gomphel Negi …..Petitioner

Versus

Radhika Negi .....Respondent

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Coram

Ms. Justice Jyotsna Rewal Dua

Whether approved for reporting?

For the Petitioner: Mr. Nitin Thakur, Advocate.

For the Respondent: Ex-parte.

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Jyotsna Rewal Dua, Judge

Respondent had been served for 16.10.2024,

however, none appeared on her behalf despite the matter

having been passed over repeatedly. Hence, she was

proceeded against ex-parte. In the interest of justice, the matter was adjourned to today, i.e. 18.10.2024. There is

again no endeavor on part of the respondent to cause

appearance in the case.

2. Petitioner's grievance is to the order dated 01.08.2024 passed by the learned Judicial Magistrate First Class, Court No.3, Shimla in Cr.MA No.4599 of 2022. The _______________

Whether reporters of print and electronic media may be allowed to see the order? Yes.

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aforesaid application was moved by the petitioner under Order 9 Rule 7 read with Section 151 of the Civil Procedure Code (CPC) for setting aside the order dated 26.02.2022. In terms of order dated 26.02.2022, the petitioner had been proceeded against ex-parte. Petitioner's application for setting aside the order dated 26.02.2022 was dismissed under the impugned order dated 01.08.2024.

3. Perusal of the zimni orders placed on record reveals that the petitioner was proceeded against ex-parte by the learned Trial Court on 26.02.2022. On 04.07.2022, the matter was ordered to be listed for arguments on 12.07.2022. On 12.07.2022, the matter was ordered to be listed for orders on 18.07.2022. On 18.07.2022, petitioner moved an application under Order 9 Rule 7 read with Section 151 CPC. Respondent was directed to file reply to the aforesaid application.

Learned counsel for the petitioner has asserted that the aforesaid application, in fact, was moved on 12.07.2022 itself, which appears to be a correct assertion in view of page 83 of the paper book. Zimni order sheets placed on record further reflect that the matter was adjourned as the learned Presiding Officer had proceeded on medical leave. On 17.08.2023, the case was transferred

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to the Court of learned Judicial Magistrate First Class, Court No.5, Shimla. It was further transferred on 24.11.2023 to the Court of learned ACJM, Court No.3, Shimla, who eventually passed the impugned order on 01.08.2024, holding the application under Order 9 Rule 7 read with Section 151 CPC as not maintainable on the ground that hearing was complete and the matter was adjourned for pronouncement of judgment by the time the petitioner moved the application for setting aside the ex-parte order.

4. The factual situation of instant case is somewhat similar to the facts in Lata Devi & Ors. Versus Chet Ram & Ors.¹. In the aforesaid case also, after conclusion of the arguments, but before the pronouncement of judgment, the Presiding Officer underwent transfer. Hence, it was held that there was scope for new arguments as the new learned Presiding Officer had to hear the arguments afresh. Relevant portion from the judgment in Lata Devi's¹case reads as under:-

"4(iv) Undoubtedly, there being a new Presiding Officer manning the post of learned Motor Accident Claims Tribunal, the arguments in the case are required to be advanced afresh before the leaned Claims Tribunal. The scenario therefore, was akin to a situation where arguments were yet to be addressed. Because of this ¹CMPMO No.300 of 2024, decided on 17.07.2024

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peculiarity, instant was not a case which had reached the stage of pronouncement of order. The hearing was yet to take place. The stage of the instant case at the time of institution of application under Order 9 Rule 7 CPC differed from the stage in Surinder Kaur's case (supra). In latter case, arguments had been concluded, whereas in the instant case, because of change of the Presiding Officer, fresh arguments were to be advanced. In this context, reference can be safely made to Harsh Mahajan Vs. Syndicate Bank.2 In the said case, application moved for setting aside ex-parte proceedings was contested by the plaintiff on the ground that after recording the evidence and hearing the arguments, only judgment remained to be pronounced, therefore, the application was liable to be dismissed. The contention raised on behalf of the defendant was that after the case had been transferred, hearing had to be undertaken afresh by the transferee Court. Therefore, the defendant cannot be precluded from appearing before the transferee Court and to argue the matter on the basis of material, which was there on the record. The Court held that the case had to be registered afresh by the transferee Court and from that stage, it had to proceed for disposal in accordance with law. Relevant observations from the judgment are as under:-

"6. On behalf of the defendant, it has been submitted by Shri Gupta that in case the Senior Sub-Judge had pronounced the judgment, after hearing was concluded by him, then his client may not have been able to persist with the application on the basis of a decision reported in AIR 1964 SC 993, Arjun Singh v. Mohindra Kumar, which has been followed by the trial Court while dismissing the application in question. According to the learned Counsel for the defendant, after the case had been transferred, the hearing remained to be undertaken by the transferee court which was to pronounce the judgment after hearing the counsel for the plaintiff and his client could not be precluded from appearing before the said court and to argue the matter on the basis of the material which was there on the record. So, on this basis, the learned Counsel for the defendant further pointed out that the hearing of the case had not been completed within the meaning of Order 9, Rule 7, C. P. C. and thus the ratio of the

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decision supra does not govern the case of his client and on such basis, he has argued that the trial Judge has failed to exercise the jurisdiction vested in it and the jurisdiction which has been exercised is not only illegal but is also per- verse and the impugned order deserves to be set aside and the application filed by his client deserves to be allowed.

7. On the other hand, learned Counsel for the plaintiff has forcefully argued that so far the hearing of the case is concerned, it stands already concluded and the case in hand is wholly covered by the ratio of the judgment supra. According to the learned Counsel for the plaintiff, after the transfer of the case to the court of Sub-Judge, Ist Class (I), Shimla, for the purposes of Order 9, Rule 7, C. P. C. the hearing remained concluded and thus, the dismissal of the application by the trial Court is perfectly legal and calls for no interference.

8. I have given my best consideration to the submissions made on behalf of the learned Counsel for the parties and I am of the view that the present revision petition deserves to be allowed. It may be appropriate to point out here that the case was admitted not decided on 15.12.1994 by the Senior Sub-Judge, who after proceeding ex parte against the defendant, recorded the evidence and concluded the hearing and thereafter reserved the judgment on 15-12- 1994. But before pronouncement of the judgment, application for setting aside the ex parte order was filed on 7-12-1994 itself and when this application was pending before the Senior Sub- Judge, the case was admittedly transferred to another court i.e. Sub-Judge, Ist Class (I), Shimla. In this context, it may be appropriate to mention here that the case has to be registered afresh by the transferee court and from that stage, it has to be proceeded for disposal in accordance with law. As such the trial Court was not justified in holding that because the case was listed for judgment, therefore, no hearing was to be undertaken by it. This position would have been correct if the case was pending before the Senior Sub-Judge. But as explained hereinabove, the case was transferred to the court of Sub-Judge, Ist Class (I), Shimla before whom the proceedings

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were commenced and he had to dispose of in accordance with law after hearing the counsel for the plaintiff. In this view of the matter, the ratio of the judgment of the apex Court supra is not applicable to the facts of the case in hand."

4(v). The fact position in the instant case is nearer to the facts in Harsh Mahajan's case (supra). Learned Claims Tribunal had a new Presiding Officer, who had to hear the arguments afresh, therefore, the respondents cannot be precluded from joining the proceedings. The application moved by them for setting aside ex-parte order dated 05.07.2022 was maintainable. The learned Claims Tribunal justifiably entertained and allowed the application moved under Order 9 Rule 7 CPC, thereby setting aside the ex-parte order dated 05.07.2022."

5. In view of ratio of the decision in Lata Devi's¹ case, there is force in the contention of learned counsel for the petitioner that in view of transfer of the case before the new Court, there was scope for further arguments in the matter. Hence, the application moved by the petitioner under Order 9 Rule 7 read with Section 151 CPC for setting aside the order dated 26.02.2022, deserves to be allowed. Ordered accordingly. The impugned order dated 01.08.2024 passed by the learned Judicial Magistrate First Class, Court No.3, Shimla in Cr.MA No.4599 of 2022 is set aside.

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The petitioner, through his learned counsel, is directed to appear before the learned Trial Court on 24.12.2024, the date stated to be already fixed, whereafter learned Trial Court shall proceed further in the matter in accordance with law.

The petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any.

Jyotsna Rewal Dua

October 18, 2024 Judge

Mukesh

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