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2003 DIGILAW 583 (AP)

Pedamalanna v. S. Sunkamma

2003-04-17

P.S.NARAYANA

body2003
( 1 ) CMP No. 5335 of 2003 is filed to vacate the interim stay granted in CMP no. 21125 of 2002 in CMA No. 3116 of 2002 dated 18-11-2002. ( 2 ) WHEN the vacate application is taken up for hearing both the counsel had addressed elaborate arguments and made a request to dispose of the main CMA itself and in view of the same, the main CMA is being disposed of finally. ( 3 ) THIS Court on 18-11-2002 in CMP no. 21125 of 2002 made the following order: "stay on condition of the petitioner depositing costs within a period of six weeks from today and in default, the stay stands vacated. On such deposit, the respondent is permitted to withdraw the same without furnishing any security". ( 4 ) SUBSEQUENT there to, since the conditional order was only partly complied with, CMP No. 4345 of 2003 was filed praying for extension of time of deposit the rest of the amount and this Court by an order dated 25-2-2003 had granted a further period of ten days and accordingly the appellants had complied with the conditional order granted by this Court. ( 5 ) THE present Civil Miscellaneous appeal is filed by the unsuccessful petitioners/defendants in I. A. No. 240 of 1999 in O. S. NO. 69 of 1997 on the file of the principal Senior Civil Judge, Kurnool. The appellants herein filed I. A. No. 240 of 1999 in O. S. No. 69 of 1997 on the file of the principal Senior Civil Judge, Kurnool to set aside the exparte decree passed on 23-6-1999 in O. S. No. 69 of 1997 on the file of the Principal Senior Civil Judge, Kurnool. The said application was dismissed by the learned Principal Senior Civil Judge, kurnool mainly on the ground that there is no sufficient reason to set aside the ex parte decree and also in view of the fact that it is a suit for maintenance. Aggrieved by the same, the appellants preferred the present civil Miscellaneous Appeal. The said application was dismissed by the learned Principal Senior Civil Judge, kurnool mainly on the ground that there is no sufficient reason to set aside the ex parte decree and also in view of the fact that it is a suit for maintenance. Aggrieved by the same, the appellants preferred the present civil Miscellaneous Appeal. ( 6 ) SRI K. Rathangapani Reddy, the learned counsel representing the appellants had stated that appellants 2 and 3 are minors and they are the donees under a gift deed executed by the 1st appellant in their favour and if the ex parte decree is allowed to stand and is not set aside the minors interest will be seriously prejudiced. The learned counsel also submitted that the father of the guardian of appellants 2 and 3 suffered fracture of his leg and in view of the circumstances explained in the affidavit filed in support of the application to set aside the exparte decree and as sufficient reason had been well explained, the learned principal Senior Civil Judge, Kurnool had totally erred in dismissing the application without giving opportunity to the appellants to contest the matter. The learned counsel also submitted that the claim of maintenance is an exorbitant claim and there are several aspects to be gone into in the suit filed by the respondent/plaintiff. ( 7 ) ON the contrary, Sri Lakshmi narayana Reddy, the learned counsel representing the respondent/plaintiff had submitted that the learned Principal Senior civil Judge, Kurnool had recorded reasons in detail in paras 7, 8, 9 and 10 of the order and there is no sufficient reason or cause explained by the appellants for setting aside the ex parte decree and hence the appeal is liable to be dismissed. The learned counsel further submitted that it is a suit for maintenance and the respondent/plaintiff is unable to maintain herself and in such a case the appellants are intentionally delaying the matter and in such circumstances the learned Principal Senior civil Judge, Kurnool was left with no other option except to make the ex parte decree. The counsel also would maintain that taking overall facts and circumstances into consideration even if this Court feels that an opportunity should be given to the appellants to contest the suit, it will be just and equitable to direct the appellants to deposit at least a portion of the decretal amount. The counsel also would maintain that taking overall facts and circumstances into consideration even if this Court feels that an opportunity should be given to the appellants to contest the suit, it will be just and equitable to direct the appellants to deposit at least a portion of the decretal amount. The learned counsel also had placed reliance on Vakati Prabhakar reddy v. Tenali Mohan Rao and also on v. K. Industries and others v. M. P. Electricity board, Rampur. ( 8 ) HEARD both the counsel. ( 9 ) THE Guardian of appellants 2 and 3 had filed an affidavit in support of the application to set aside the ex parte decree in i. A. NO. 240 of 1999 in O. S. No. 69 of 1997 on the file of the Principal Senior Civil Judge, kurnool. It was stated that his father suffered fracture of his leg about four months prior to filing of the application and he was attending to his father, and that his advocate addressed two letters to him and in view of the aliment of his father he could not meet his advocate. Thereafter, upon receiving a registered letter from his advocate informing that an exparte decree was passed, he came to Kurnool and after making necessary enquiries he filed the application aforesaid for setting aside the ex parte decree. The respondent/plaintiff filed a counter denying all the allegations. The learned Principal Senior Civil Judge, kurnool had recorded that the suit was coming for further evidence on behalf of the respondent/plaintiff and the appellants had not chosen to cross-examine P. W. 1 and the cross-examination on their behalf was treated as nil by an order dated 15-6-1999 and in such circumstances the appellants/ defendants in the suit were set ex parte and an ex parte decree was passed. The learned principal Senior Civil Judge, Kurnool also did not believe the reasons which had been explained by the appellants in the affidavit filed in support of the application. As can be seen from the material available on record, the main reason which weighed with the learned Principal Senior Civil Judge, kurnool in dismissing the application was that it is a suit for maintenance. As can be seen from the material available on record, the main reason which weighed with the learned Principal Senior Civil Judge, kurnool in dismissing the application was that it is a suit for maintenance. It is no doubt true that in a suit for maintenance of this nature when the wife is struggling for getting relief from the Court, it is the bounden duty of the Court to dispose of the matter at the earliest point of time. At the same time, it is to be kept in mind that normally a matter has to be decided on merits as a general rule but except under exceptional circumstances and unless it becomes inevitable and as there is no other go for the Court to set the parties ex parte and to pass exparte orders or ex parte decrees, as the case may be. The explanation given by the appellants in the affidavit filed in support of the application to set aside the ex parte decree is that the father of the guardian of appellants 2 and 3 suffered fracture at the relevant point of time and he was attending to his father and hence he could not meet his advocate and after coming to know that an ex parte decree was passed he came over to Kurnool and after making necessary enquiries he filed an application. No doubt, the same was denied by the respondent/plaintiff. As referred to supra, the conditional order of deposit of costs already had been complied with. In vakati Prabhakar Reddy case (1 supra) the division Bench of this Court held that while setting aside of exparte decree, Court has discretion to impose such condition as to deposit of costs and also decretal amount or any portion thereof depending upon facts and circumstances of a given case. The same view was expressed by the Apex court in V. K. Industries case (2 supra ). The suit filed by the respondent/plaintiff is a suit for maintenance. It is needless to say that the appellants are in possession of all the properties of the family and enjoying the properties and the respondent/plaintiff, the wife of the 1st appellant is not provided with any maintenance. It is no doubt true that what is the quantum of maintenance to which the wife is entitled, is a matter to be decided in the main suit. It is no doubt true that what is the quantum of maintenance to which the wife is entitled, is a matter to be decided in the main suit. However, taking into consideration the over all facts and circumstances especially in the light of the fact that it is a suit for maintenance filed by the wife, I am inclined to set aside the order passed in I. A. No. 240 of 1999 in O. S. No. 69 of 1997 on the file of the Principal Senior civil Judge, Kurnool and permit the appellants to further contest the suit on the following condition:"the appellants shall deposit a further amount of Rs. 5,000/- (Rupees five thousand only) within a period of eight weeks from today and the respondent/plaintiff is permitted to withdraw the same and in default of making such deposit, the impugned order in the Civil Miscellaneous appeal shall stand". ( 10 ) IT is further directed that the principal Senior Civil Judge, Kurnool will make an endeavour to dispose of the main suit itself at the earliest point of time at any rate preferably within a period of six months after due compliance of the conditional order referred to supra. ( 11 ) ACCORDINGLY, the Civil Miscellaneous appeal is allowed with the above directions. No order as to costs.