Research › Search › Judgment

Andhra High Court · body

2003 DIGILAW 142 (AP)

M. Ramamurthy v. Gundala Lakshminarayana

2003-01-27

P.S.NARAYANA

body2003
P. S. NARAYANA, J. ( 1 ) THE appellant is the petitioner-1st defendant in I. A. No. 415 of 2001 in O. S. No. 1529 of 1998 on the file of the V Senior Civil Judge, City Civil Court at Hyderabad. ( 2 ) THE appellant had filed the application referred to supra to set aside the ex parte decree passed on 05-02-2001 on the ground that he was not served with summons in the suit and the respondent-plaintiff in the suit managed to get false endorsement on the summons and obtained ex parte judgment and decree. It was also stated that the appellant was suffering from heart ailment, hypertension and other deceases and had undergone treatment at Huzurnagar during the months of January and February 2001 and was advised bed rest. Hence, he could not attend the Court on the date when the ex parte decree was passed against him. ( 3 ) THE respondent filed a counter and resisted the same stating that the summons were sent to the address given by the appellant in the promissory note and received the summons sent through post but refused to receive those summons. It was also stated that it can be seen from the endorsement of the process server that the appellant deliberately avoided to receive the Court summons and after filing of the E. P. for realization of the amount, the appellant had thought of filing this application to set aside the ex parte decree. The learned V Senior Civil Judge, City Civil Court, Hyderabad by an order dated 12-08-2002 had arrived at a conclusion that the grounds raised by the appellant cannot be believed and had ultimately dismissed the application. Aggrieved by the same, the present C. M. A. is filed. Sri Jalli Kanakaiah, the learned counsel representing the appellant had taken me through para Nos. 2 to 6 of the affidavit filed in support of the application to set aside the ex parte decree before the V Additional Senior Civil Judge, City Civil Court, Hyderabad. He had also drawn my attention to the respective pleadings of the parties. The learned counsel also had drawn my attention to the written statement and had submitted that there is valid defence to be gone into at the time of trial. He had also drawn my attention to the respective pleadings of the parties. The learned counsel also had drawn my attention to the written statement and had submitted that there is valid defence to be gone into at the time of trial. The learned counsel also contended that both the grounds are sustainable grounds or in the alternative, at any rate, in view of the medical certificate produced by the appellant in this regard, it can be taken that the appellant was suffering with the ailments specified in the affidavit filed in support of the application to set aside ex parte decree. The learned counsel also further had drawn my attention to the order passed in C. M. P. NO. 21289 of 2002 and stated that the entire suits costs have already had been deposited. In the light of the facts and circumstances of the case, the ex parte decree passed in the suit is liable to be set aside and an opportunity to be given to the appellant to contest the matter. Per contra, Sri Suri the learned counsel representing the respondent-plaintiff had drawn my attention to the impugned order and had submitted that the reasons recorded are convincing reasons and the learned V Senior Civil Judge, City Civil Court had negatived both the grounds while dismissing the application and hence, there is no sufficient cause or valid reasons to set aside the ex parte decree. The learned counsel also had made elaborate submissions about the conduct of the party in making false allegations. The learned counsel also, in particular, had drawn my attention to the last portion of the impugned order and had pointed out that the learned V Senior Civil Judge, City Civil Court, Hyderabad had disbelieved the second reason also taking into consideration the conduct of the party and hence, there is no justification in setting aside the ex parte decree made in O. S. No. 1529 of 1998 on the file of the V Senior Civil Judge, City Civil Court, Hyderabad. Heard the counsel representing the respective parties. Order 9 Rule 13 of the Code of Civil Procedure reads as here under: Setting aside decree ex parte against defendant. Heard the counsel representing the respective parties. Order 9 Rule 13 of the Code of Civil Procedure reads as here under: Setting aside decree ex parte against defendant. ( 4 ) IN any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfied the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: (Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff s claim.) The words employed are:"if he satisfies the Court that the summons were not duly served or that he was prevented by any sufficient cause from appearing with the suit was called on for hearing" ( 5 ) THE first ground raised by the appellant is that he was not served with summons at all and the respondent managed to obtain false endorsement on the suit summons. No doubt, the stand taken by the appellant is that he is a resident of Kalvapalli village of Garidepalli Mandal in Nalgonda district whereas the suit summons were sent to Husurnagar without the name of the village and that the appellant filed a certified copy of the registered sale deed in which his residence was shown as Kalvapalli village. The endorsement of process server of Huzurnagar Court shows that the appellant refused to receive the summons when an attempt was made to effect service in the presence of the respondent and also the appellant had raised an objection for affixture of summons too. The endorsement of process server of Huzurnagar Court shows that the appellant refused to receive the summons when an attempt was made to effect service in the presence of the respondent and also the appellant had raised an objection for affixture of summons too. In the light of the material available on record and also the conduct of the appellant, the learned V Senior Civil Judge, City Civil Court, Hyderabad was not inclined to believe the version of the appellant in this regard. In view of the same, as far as the first ground is concerned, the learned V Senior Civil Judge is well justified in negativing the said ground. Hence, the condition "if he satisfied the Court that the summons were not duly served" cannot be accepted to be a ground available to the appellant for the purpose of setting aside the ex parte decree. ( 6 ) THE matter does not stop there since yet another ground was raised by the appellant that he was prevented from attending the Court as he was suffering from heart ailment and other deceases and had filed a medical certificate in support of the same. In other words, the appellant intends to take shelter under "that he is prevented by any sufficient cause from appearing when the suit was called on for hearing". The learned V Senior Civil Judge, City Civil Court, Hyderabad had negatived the second ground also just taking into consideration the conduct of the party. In view of the fact that the learned Judge had negatived the first ground, It can be said that the conduct of the party may be blamed worthy and therefore, the first ground may not be a sustainable ground at all. I had gone through the medical certificate produced by the appellant in this regard and also the respective allegations made by the parties in the affidavit filed in support of the application in the counter filed in this regard. I am satisfied that as far as the second ground is concerned, the appellant had established sufficient cause by which he was prevented from attending the Court on the fateful day when the ex parte decree was made against him. Apart from this aspect of the matter, this Court in C. M. P. NO. 21289 of 2002 had made the following order. Apart from this aspect of the matter, this Court in C. M. P. NO. 21289 of 2002 had made the following order. "interim Stay on condition of the petitioner-appellant depositing entire suits costs in the Court below within a period of four weeks from the date of receipt of a copy of this order, failing which the interim stay granted shall stand vacated. On such deposit, the respondent-plaintiff is at liberty to withdraw the same without furnishing security. Post the matter after four weeks". ( 7 ) IT is brought to my notice that the entire suit costs as directed by this Court had been deposited but the same was not withdrawn by the respondent-plaintiff. It is made clear that the respondent-plaintiff is at liberty to withdraw the same without furnishing any security as already directed by this Court which will be subject to the result of the suit. Inasmuch as the order in equity had already been made in this regard and in the light of the medical certificate produced, I am satisfied that the second ground raised by the appellant is established and hence, the appellant shall be given an opportunity to contest the matter. No doubt, the counsel for the respondent had expressed the apprehension that the view of the appellant is only to delay the matter. It is needless to mention that since it is only a money suit, the trial Court shall expedite the hearing of the matter and dispose of the same at the earliest point of time. ( 8 ) ACCORDINGLY, the appeal is allowed by setting aside the order dated 12-08-2002 in I. A. No. 415 of 2001in O. S. No. 1529 of 1998 on the file of the learned V Senior Civil Judge, City Civil Court, Hyderabad by setting aside the ex parte decree passed on 5-2-2001in O. S. No. 1529 of 1998 on the file of the V Senior Civil Judge, City Civil Court, Hyderabad. No costs.