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2004 DIGILAW 254 (AP)

T. R. Ananthan v. Jeevan Mitra Chit Fund (P) Ltd.

2004-03-03

L.NARASIMHA REDDY

body2004
( 1 ) THE first respondent filed O. S. No. 1583 of 1999 in the Court of the VII Senior Civil Judge, City Civil Court, Hyderabad against the respondents-2, 3, 4 and the petitioner herein for recovery of certain amount. The petitioner herein figured as Defendant No. 4. The suit was decreed ex parte on 31-01-2001 and the E. P. was filed to execute the decree. At that stage, the petitioner filed I. A. No. 547 of 2003 under Order 9 Rule 13 of the Code of Civil Procedure (for short the Code) to set aside the ex parte decree. He contended that he was not served with any notice in the suit. The said I. A. was allowed with a condition that the petitioner shall fire his written statement on or before 01-08-2003. ( 2 ) THE petitioner filed written statement on 01-08-2003 as directed by the trial Court. However, he took a plea that he was not furnished with the copies of the documents and thereby he is handicapped from taking appropriate defence. The suit was posted to 11-11-2003 for trial. On that day, the first respondent filed affidavit in lieu of chief examination. He filed I. A. No. 1241 of 2003 under Order 7 Rule 14 of the Code to receive certain additional documents. The petitioner contends that he raised objections for filing of the documents, both as regards the stage at which they were sought to be filed and non-supply of the copies of the same. The trial Court, however allowed the I. A. on 11-11-2003 itself. ( 3 ) ACCORDING to the petitioner, the plaintiff was examined in chief on 17-11-2003 and as many as 20 documents were marked. The matter is said to have been adjourned to 19-11-2003 for further chief examination. On the ground that the counsel for the first respondent has reported that he does not intend to examine the PW. 1 further, and in view of the reluctance on the part of the petitioner to cross-examine PW. 1, the evidence of PW. 1 is said to have been closed. On the same day, the petitioner filed I. A. No. 1297 of 2003 seeking two weeks time to file Additional Written statement. The same was dismissed and the matter was reserved for judgment. 1, the evidence of PW. 1 is said to have been closed. On the same day, the petitioner filed I. A. No. 1297 of 2003 seeking two weeks time to file Additional Written statement. The same was dismissed and the matter was reserved for judgment. The copies of orders in I. A. No. 1241 of 2003 and 1297 of 2003 are said to be not furnished so far. The petitioner also filed I. A. Nos. 1384 of 2003 and 1385 of 2003 to reopen the evidence and recall PW. 1 for cross-examination on 03-12-2003. A memo was filed, bringing to the notice of the Court that the documents relied upon by the first respondent were not furnished so far. The memo as well as the application are said to have been rejected, on 04-12-2003. ( 4 ) THE petitioner filed I. A. No. 1414 of 2003 to reopen the suit for defence evidence. The same is allowed on condition that the petitioner leads his evidence on 22-12-2003. Narrating these developments, the petitioner contends that he does not expect dispassionate treatment and consideration of the matter by the trial Court and seeks transfer of the suit to any other Court of equal jurisdiction in the City Civil Court at Hyderabad. ( 5 ) IN the counter affidavit filed by the first respondent, it is stated that the allegations made by the petitioner are incorrect and the matter has been protracted on one pretext or the other. It is alleged that though maximum indulgence was shown by the Court below, the petitioner had not co-operated with the Court in disposal of the matter. ( 6 ) HEARD the learned counsel for the petitioner and learned counsel for the first respondent. The petitioner seeks transfer of O. S. No. 1583 of 1999 on the file of the Court of the VII Senior Civil Judge, City Civil Court to any other Courts of equal jurisdiction in Hyderabad. The basis for such a request is the apprehension that the matter may not receive dispassionate consideration. The petitioner has gained this impression in view of certain developments, which have taken place in quick succession. A perusal of the narration of events in preceding paragraph discloses that the trial Court has taken various steps to ensure earlier disposal of the suit, obviously on account of the fact that the suit is of the year 1999. The petitioner has gained this impression in view of certain developments, which have taken place in quick succession. A perusal of the narration of events in preceding paragraph discloses that the trial Court has taken various steps to ensure earlier disposal of the suit, obviously on account of the fact that the suit is of the year 1999. ( 7 ) THE ex parte decree against the petitioner was set aside only in the year 2003. That being the case, the petitioner is entitled to be given adequate opportunity to defend himself. The petitioner did comply with the direction of the trial Court to file the written statement by 01-08-2003. All the same, he made a specific averment in the written statement to the effect that the documents relied upon by the first respondent were not supplied to him. In a way, he has reserved to himself, the right to submit further pleadings, on being furnished the necessary documents. The petitioner was not supplied with the documents that were filed along with the plaint. In addition to that, the first respondent has come forward with another set of documents through I. A. No. 1241 of 2003 without furnishing copies of the same to the petitioner. The Trial Court ought to have ensured that the documents filed by the first respondents are made available to the petitioner. In the absence of the same, the petitioner cannot be expected to take an effective defence. The petitioner has also raised objection as to the stage at which the additional documents were filed into the Court. ( 8 ) ANOTHER area of controversy relating to the marking the documents. The first respondent has filed an affidavit in lieu of his oral evidence. Various documents were marked through him on 17-11-2003. Admission and receiving of documents is not a matter of course. The petitioner was entitled to be given an opportunity to put forward its contention as to admissibility, relevance etc. , of those documents. Such a right can be exercised effectively, if only the copies of documents are made available. The trial Court is expected to proceed carefully, when valuable rights of the petitioner are involved, particularly when the original debtor has chosen to remain ex parte. The various I. As that have been filed by the petitioner centered around this grievance. Such a right can be exercised effectively, if only the copies of documents are made available. The trial Court is expected to proceed carefully, when valuable rights of the petitioner are involved, particularly when the original debtor has chosen to remain ex parte. The various I. As that have been filed by the petitioner centered around this grievance. Had this been attended to effectively, the occasion for filing various applications, refusal by the trial Court to consider the same, and apprehension on the part of the petitioner as to the dispassionate consideration, could have been avoided. ( 9 ) EXCEPT indicating the apprehension on the basis of these developments, the petitioner does not express any reservations as regards the Presiding Officer. There should not be any objection for any one to proceed with the matter, in case necessary steps are taken to dispel this apprehension. Under these circumstances, the Transfer CMP is disposed of, with the following directions: (a) The trial Court shall ensure that the first respondent/plaintiff furnishes the copies of the documents relied upon by him to the petitioner within one week from the date of receipt of a copy of this order; (b) The petitioner shall be entitled to submit his additional written statement, if so advised and it shall be confined to the purport of the documents, within two weeks from the date of receipt of copies of documents; (c) The matter shall stand reopened, and P. W. 1 shall be recalled to be cross-examined by the petitioner and it shall be open to the petitioner to cross-examine PW. 1 in relation to all the documents that have been marked through PW. 1 on earlier occasion; (d) On closure of the evidence on behalf of the first respondent, it shall be open to the petitioner to lead his evidence; and (e) The trial Court shall proceed with the matter as indicated above and dispose of the suit as expeditiously as possible.