VIJA Y KUMAR MADAN AND ORS. versus R.N. GUPTA TECHINCAL EDUCATION SOCIETY AND ORS.

Citation: [2002] 3 S.C.R. 217 · Decided: 18-04-2002 · Supreme Court of India · Bench: R.C. LAHOTI, B.N. AGRAWAL · Disposal: Disposed off
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Judgment (excerpt)

.,_ 
VIJA Y KUMAR MADAN AND ORS. 
A 
v. 
R.N. GUPTA TECHINCAL EDUCATION SOCIETY AND ORS. 
--
APRIL 18, 2002 
[R.C. LAHOTI AND B.N. AGRAWAL, JJ.] 
B 
' • 
Code of Civil Procedure, 1908: 
Order 9, Rule 7-Suitfor recovery of a"ears of rent and/or possession-- c 
Defendant not appeared on date fu:ed-Suit ordered to proceed ex-parte-
Application by defendants/or setting aside ex-parte order-Trial court setting 
aside ex-parte order, but putting defendants to terms in that they should 
deposit monthly lease rent-Defendants filing appeal before High Court as 
regards putting them to terms-High Court holding the condition imposed by 
trial court to be too onerous, set it aside-Appeal by plaint!ife-Meanwhile on D 
the basis of interim order by Supreme Court trial court decreed th« suit-On 
• 
execution proceedings, possession recovered by plaint!ife-Held, under order 
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9, Rule 7, the court does have jurisdiction, while setting aside the ex-parte 
order, to impose costs and also to put the defendants on terms-But the court 
cannot exercise its power to put the defendant/applicant on such terms as may 
E 
have the effect of pre-judging the controversy involved in the suit and virtually 
decreeing the suit though ex-parte order has been set aside or to put the 
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parties on such terms as may be too onerous-High Court was justified in 
setting aside the condition imposed by the trial court in its order which was 
• 
too onerous, also vague, uncertain and suffering from want of clarity-The 
,, 
ex-parte order and the judgment and decree of the trial court based on the F 
said ex-parte order are set aside-The suit shall stand restored on the file of 
the trial court-As the plaint!ife have secured possession of suit premises and 
the defendants-respondents have given up their right of restitution so far as 
the possession of premises is concerned, the suit shall now be treated as a 
money claim for recovery of arrears as claimed in the plaint as also for 
recovery of arrears pending suit for the period expiring on/. I 1.2000, the date G 
on which the plaintiff-appellants have secured possession over the premises-
........ 
Defendants shall pay cost of Rs. 50, 000 to the plaintiff-appellants . 
Arjun Singh v. Mohinder Kumar and Ors., AIR (1964) SC 993, relied 
on. 
H 
217 
218 
SUPREME COURT REPORTS 
[2002] 3 S.C.R .. 
A 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. l 890 of 
2000. 
From the Judgment and Order dated 14. l 0.99 of the Punjab and Haryana 
High Court in C.R. No. 2421 of 1999. 
B 
Manoj Swarup for the Appellants. 
c 
M.N. Krishnamani and Aseem Mehrotra for R.K. Agnihotri for the 
Respondents. 
The following Judgment of the Court was delivered 
Certain premises situated in the township of Gurgaon, Haryana were 
held by the respondents on tenancy from the appellants under the Deed of 
Lease dated 1.4.1996. The rent of the tenancy premises, payable with effect 
from 1.4.1996, was Rs. 63,087.50 per month, in addition to maintenance 
charges of Rs. 40,000 per month. On 27.3.1998, the appellants filed a suit for 
D recovery of rent and ejectment 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 
E 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 
ca·;,ise for previous non-appearance in the court and that the non-appearance 
of defendants and their counsel on 2.5.1998 was not intentional but due to 
F unavoidable circumstances. However, purporting to exercise the power 
conferred by Order 9 Rule 7 of the CPC to put the defendants, on terms, the 
trial court directed as under:-
G 
H 
"It is pertinent to mention here that since defendants are enjoying 
the property, it will be reasonable to direct them to deposit monthly 
lease amount in the court at the time of filing written statement. If 
ultimately it is found that case of the plaintiffs is false and that of the 
defendants is true, defendants will be entitled to claim back that 
amount from the plaintif
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