Hariprasad,J:
Petition under Article 226 of the Constitution of India is filed with following prayers:-
“(i) Issue appropriate order/direction setting aside Ext.P3 order dated 13.5.2014 in I.A.No.147 of 2014 and P5 order dated 12/6/2014 in IA No.265 of 2014 n OP No.427/2013 on the file of the Family Court, Kasaragod and allow the prayer made therein;
(ii) Issue any other order or direction as this Hon'ble Court may deem fit and property in the facts and circumstances of the case.”
The petitioner and the respondent are husband and wife, followers of Islam religion. They married as per the custom prevailing in the religion on 20.9.2001. There is one male child born in the relationship. The respondent/wife approached the Family Court with an original petition requesting restitution of conjugal rights and for such other reliefs. The petitioner herein entered appearance before the trial court and filed a counter statement. Thereafter, he went abroad. Hence, the court below set him ex parte and posted the matter for ex parte evidence. Knowing that fact, he approached the court below with a petition under Order IX Rule 7 of C.P.C. to set aside the ex parte order. That application was also dismissed on account of the absence of the petitioner. Learned counsel for the petitioner submitted that the order passed by the court below is legally unsustainable for the reason that the petitioner had specifically informed the court below that he would be returning to his native place on 15th June, 2014. In spite of that submission, the court below, without considering the prejudice that is likely to be suffered by the petitioner, dismissed his application.
2. We heard the learned counsel for the petitioner. Considering the reliefs that can be granted in this petition, we are of the view that no notice is required to be issued to the respondent herein as the matter can be disposed solely on a question of law. Order IX Rule 7 of the C.P.C. reads as follows:-
“R.7 Procedure where defendant appears 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.”
It is clear that if an application under the above provision is filed by the defendant who could not appear on a previous date, the court is bound to consider the cause shown by him for his previous non- appearance and if satisfied, the court can direct, on costs or otherwise, that the defendant be heard in answer to the suit as if he had appeared on the day fixed for his appearance. Order IX Rule 7 of the C.P.C. has no application where the defendant merely desires to proceed from the stage at which he appears. An application under Order IX Rule 7 of the C.P.C. is required only when he wants the court to relegate himself back to the date of receipt of notice in the proceedings. Therefore, it is evident that the petitioner will suffer no prejudice on account of dismissal of the application as he can either file a fresh petition under Order IX Rule 7 of C.P.C. or proceed forward from the date of his appearance.
3. The learned counsel for the petitioner entertains an apprehension that the court below may deal with the proposed petition as if a second petition is hit by res judicata under Section 11 of C.P.C. There is no basis for the apprehension. In order to apply the principles of res judicata, there must be a matter heard and finally decided. In the absence of such a decision, the subsequent petition cannot be viewed as one hit by res judicata.
In the result, this Original Petition is disposed of with a direction that the petitioner shall seek appropriate reliefs before the court below.
V.K.MOHANAN, Judge A.HARIPRASAD, Judge.
MBS/