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2004 DIGILAW 1356 (AP)

Berger Paints India Ltd. , Kolkata v. Syed Vicaruddin

2004-11-11

L.NARASIMHA REDDY

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L. NARASIMHA REDDY, J. ( 1 ) THIS C. M. A is filed against the order, dated 25. 3. 2004, passed by the learned V Senior Civil Judge, City civil Court, Hyderabad, in IA No. 1498 of 2003 in O. S. No. 1834 of 2002. ( 2 ) THE respondent is the owner of a non-residential premises. He leased the same to the appellants. Disputes arose as to the termination of the lease and the consequences arising out of the vacation of the premises. The respondent filed the suit for recovery of a sum of Rs. 4,54,384/-, towards damages of different categories, against the appellants. On the ground that they have not filed the written statement even after entering appearance, the appellants were set ex parte on 18. 7. 2003. Thereafter, the Trial Court proceeded to decree the suit on the basis of an affidavit filed, in lieu of chief-examination, on 2. 9. 2003. ( 3 ) THE appellants filed LA. No. 1498 of 2003 under Order 9 Rule 13 C. P. C. , to set aside the ex parte decree. It was pleaded that the local Administrative Officer, who was looking after the litigation, has resigned in the month of July, 2003, and others were not conversant with the matter, to brief the counsel. The dependent stated that he appointed as Administrative Officer in the month of September, 2003, and soon thereafter, he has filed this application on realizing that the suit decreed ex parte. The trial Court dismissed the application. ( 4 ) LEARNED Counsel for the appellant sri Ramesh Babu submits that as the claim between the appellants and the respondent was settled, way back, in the month of may, 2002, the suit was not sustainable at all. He submits that the failure to file written statement was on account of the fact that the Administrative Officer, who was looking after the matter, had suddenly resigned in the month of July; and thereafter, the post remained vacant till september, 2003. He submits that hardly within six days from the date of ex parte decree, the application was filed and that no prejudice would be caused to the respondent, if the suit is decided on merits. He submits that the observations made by the Trial Court, as to the contents of the affidavit, are not borne out by record. He submits that hardly within six days from the date of ex parte decree, the application was filed and that no prejudice would be caused to the respondent, if the suit is decided on merits. He submits that the observations made by the Trial Court, as to the contents of the affidavit, are not borne out by record. ( 5 ) SRI Syed Sharief Ahmed, learned counsel for the respondents, on the other hand, submits that the appellants were given ample opportunity by the Trial Court to file written statement and it was only when there was a consistent default on the part of the appellants, that the Trial court set them ex parte, and proceeded to decree the suit. He submits that even if the contents of the affidavit are taken to be true, the Court was virtually left with no other alternative, except to decree the suit ex parte, having regard to the recent amendment to Order VIII C. P. C. ( 6 ) THE suit filed by the respondent was decreed ex parte on 2. 9. 2003. Before that, the appellants were set ex parte on 18. 7. 2003. They filed an application under Order 9, Rule 13 C. P. C to set aside the ex parte decree, shortly thereafter. It was contended on their behalf that the failure to file written statement was on account of resignation of the Administrative officer in the month of July. In the affidavit, it was clearly stated that the new Administrative Officer, the deponent therein, has taken charge in the month of september. The respondent filed a counter affidavit disputing the contention of the appellants. The Trial Court passed the following order:"both sides present. Ex parte order suo motto set aside by Court as counter already filed on 23. 1. 2004 in Court (?) Heard both. A perusal of the petition and counter shows that the petitioner states that administrative Officer of petitioner resigned and hence could not file written statement, but the same does not say when the said Administrative Officer resigned and whether any other Administrative Officer is appointed. If so when and why the other personnel of the petitioner did not choose to file written statement in spite of being given ample time. In the above mentioned circumstances, I am not inclined to allow this petition. Hence petition dismissed. No costs are awarded. If so when and why the other personnel of the petitioner did not choose to file written statement in spite of being given ample time. In the above mentioned circumstances, I am not inclined to allow this petition. Hence petition dismissed. No costs are awarded. " ( 7 ) A reading of the order extracted above, discloses that the Court itself was not clear about the nature of proceedings as a whole, or in its appreciation of the pleadings of the parties. It is not known as to which order was set aside. In fact, the second sentence hardly conveys any meaning. The observation that the affidavit filed in support of the LA does not disclose as to when the Administrative Officer resigned and whether any Administrative officer is appointed, and if so, when; are contrary to the record. As observed earlier, the affidavit was filed by the Administrative officer himself and he has stated that his predecessor resigned in the month of July and that he took charge in the month of september, The Trial Court ought to have taken little more care, in dealing with matters, which have far reaching implications for the parties. ( 8 ) FURTHER, the suit was decreed on the basis of a judgment, which reads as under:"affidavit of PW-1 filed. Exs. A-1 to A-15 marked. Plaintiff closed his evidence. Hence court perused the evidence adduced by the plaintiff and is satisfied with the same. Hence suit is decreed as prayed for with costs and future interest at the rate of 12% p. a till realization of suit. " ( 9 ) THOUGH the same is not challenged in this C. M. A, this Court feels it necessary to indicate the law laid down by the Supreme court, in the matter of passing of an ex parte decree; lest such instances recur. ( 10 ) IN an adversarial system of litigation, the written statement or the counter- affidavit, as the case may be, certainly plays an important role on the outcome of the proceedings. However, even where the opponent remains ex parte, the same does not absolve of the Trial Court of its obligation to examine the matter with reference to the settled principle of law, or the requirements under the C. P. C itself. However, even where the opponent remains ex parte, the same does not absolve of the Trial Court of its obligation to examine the matter with reference to the settled principle of law, or the requirements under the C. P. C itself. It is not as if any suit presented to a Court can be decreed straightaway, on the sole ground that it was not opposed by other party. Rule 11 of Order 7 C. P. C. , imposes heavy duty on the Court, to examine whether the plaint discloses the cause of action, or whether the relief claimed in the suit is barred by any law etc. ( 11 ) LIMITATION is another aspect, which the Court is under an obligation, which has to be examined by the Court on its own accord, irrespective of any plea by the opponent in a suit. Order 20 C. P. C. , particularly Rules 4 and 5 thereof, mandate that the judgments of Courts other than small Cause Court, shall contain concise statement of facts, points for determination, and the decisions therein and the reasons for such decision. Compliance with these requirements does not depend on the existence or otherwise of a defence by the opponent. It indirectly suggest that non- compliance with the conditions referred to therein, render the judgment either as invalid or inoperative. ( 12 ) THE definition of judgment under sub-section (9) of Section 2 itself mandates that the judgment should be self-contained and from a reading of the same, the facts, the nature of controversy, the decision of the Court and the reasons therefor, must be evident. After referring to Rule 4 (ii) of Order 20 and the definition under section 2 (9), the Supreme Court held in balraj Taneja v. Sunil Madan, 1999 (6) ald 21 (SC) = AIR 1999 SC 3381 , as under:"judgment should be a self-contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court and in what manner. The process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment. The process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment. Whether it is a case which is contested by the defendants by filing a written statement, or a case which proceeds ex pane and is ultimately decided as an ex parte case, or is a case in which the written statement is not filed and the case is decided under Order 8, Rule 10, the court has to write a judgment which must be in conformity with the provisions of the code or at least set out the reasoning by which the controversy is resolved. " ( 13 ) IF the ex parte judgment rendered by the Trial Court is examined, from this standpoint, it can safely be said that it is in clear contravention of the mandatory requirements under CPC and the judgment of the Supreme Court, referred to above. ( 14 ) HENCE, the CMA is allowed, and the order under appeal is set-aside. Consequently, IA No. 1498 of 2003 shall also stand allowed, and the ex parte decree, dated 2-9-2003, be set aside. It shall be competent for the appellants herein, to contest the suit, in accordance with law. There shall be no order as to costs.