Research › Search › Judgment

Andhra High Court · body

2004 DIGILAW 267 (AP)

Yelka Ram Reddy v. Kancharlaindira

2004-03-05

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THE petitioners filed O. S. No. 51 of 1996 in the Court of Senior Civil judge, Suryapet for the relief of declaration and possession of the suit schedule property against the respondents. The respondents were served with notice and engaged advocate. However, they did not file written statement for a very long time. After giving several opportunities, the Trial Court set them ex parte and passed an ex parte judgment and decree on 24. 8. 2001. ( 2 ) THE respondents filed LA. No. 52 of 2002 under Order DC Rule 13 to set aside the ex parte decree. In the affidavit filed in support of I. A. , it has stated that the second respondent has been suffering with the formation of stones in the kidneys and thereby he could not contact the Advocate. It is stated that the 1st respondent being his 2004 (4) FR-F-24 wife was also busy in attending to him and the omission to appear before the Court on the relevant date was neither wilful nor wanton. The affidavit also discloses that they have filed written statement along with la. ( 3 ) THE petitioners resisted the application of the respondents, it was stated that even if the contention that the 2nd respondent was suffering from any ailment is true, that did not prevent the 1st respondent from filing the written statement and they have been dragging on the matter on one pretext or the other. The Trial Court dismissed the LA. through its order dated 17. 8. 2002. Thereupon the respondents filed c. M. A. No. 12 of 2003 in the Court of H additional District Judge, Nalgonda. Through its order dated 20. 1. 2004, the lower appellate court allowed the C. M. A. , set aside the order in LA. No. 52 of 2002 as well as ex parte decree in O. S. No. 51 of 1996 on condition that the respondents pay a sum of rs. 500/- towards costs and file written statement within a period of one month. The petitioners assail the order in C. M. A. No. 12 of 2003. No. 52 of 2002 as well as ex parte decree in O. S. No. 51 of 1996 on condition that the respondents pay a sum of rs. 500/- towards costs and file written statement within a period of one month. The petitioners assail the order in C. M. A. No. 12 of 2003. ( 4 ) SRI V. Hanumantha Rao, learned counsel for the petitioners submits that the very fact that the respondents did not file written statement for a period of four years discloses the indifference on their part and that the Trial Court was left with no alternative except to decree the suit ex parte. He, further, submits that the reasons stated by the respondents in the affidavit filed in support of I. A. No. 52 of 2002 did not provide any cause as such, for setting aside the ex parte decree. He disputes the factum of submission of the written statement along with LA. The learned Counsel also submits that the lower appellate Court had not taken into account the hardship that is caused to the petitioners on account of the setting aside of the ex parte decree. ( 5 ) THROUGH the order under revision, the lower appellate Court had set aside the order of the Trial Court in LA. No. 52 of 2002 and thereby set aside the ex parte decree in O. S. No. 51 of 1996. The respondents filed application under Order DC rule 13 of Civil Procedure Code within time. The explanation that was offered by them related to the failure in filing the written statement within the time. The Trial court failed to maintain the distinction between the lapse on the part of the respondents to file the written statement on the one hand and not being present in the Court when the matter was taken up on the other hand. While the lapse as regards first aspect is to result in forfeiture of the right to file written statement, the lapse on the other aspect would result in setting the ex parte decree. The application under order DC Rule 13 C. P. C. , deals with the 2nd aspect alone. It is not as if the Trial court has passed any order forfeiting the right of the petitioner to file the written statement. The application under order DC Rule 13 C. P. C. , deals with the 2nd aspect alone. It is not as if the Trial court has passed any order forfeiting the right of the petitioner to file the written statement. While considering the application under Order DC Rule 13 C. P. C. , the Trial court was required to examine as to whether there was any deliberate omission or lapse on the part of the respondents in attending the Court on the day on which the applicant was set ex parte or and ex parte decree was passed. Instead, it proceeded to discuss the matter as though it as considering an application under Section 5 of the limitation Act or an application to set aside the order forfeiting right to file written 1statement. ( 6 ) TIME and again this Court held that while considering the application under order DC Rule 13 C. P. C. , the Court has to examine the justification, or the absence of it, on the part of the applicant in remaining absent on the day on which the ex parte order was passed. The conduct of the parties at other stages of proceedings would hardly be of any relevance in such cases. It was in this context, that the lower appellate Court had corrected the mistakes committed by the Trial Court. ( 7 ) THE learned Counsel for the petitioners submits that the respondents have not filed written statement at all. For this purpose, he placed his reliance upon an observation of the lower appellate Court, wherein the respondents were granted one month time to file written statement. The fact, however, remains that the specific contention of the respondents in the affidavit filed in support of the LA. about their filing of the written statement was not contradicted by the petitioners nor was taken exception to, by the Trial Court. The observation of the lower appellate Court as regards granting of time to file written statement appears to have been made in usual course. The learned Counsel for the petitioner also submits that in view of the amendment to C. P. C. , it is not permissible for the respondents to file the written statement at a later stage. As observed earlier, the respondents have stated in their affidavit filed on 19. 9. 2001, that they are filing written statement. The learned Counsel for the petitioner also submits that in view of the amendment to C. P. C. , it is not permissible for the respondents to file the written statement at a later stage. As observed earlier, the respondents have stated in their affidavit filed on 19. 9. 2001, that they are filing written statement. The amendment came into force in July, 2002. Viewed from this angle also, the objection cannot be sustained for the foregoing reasons. ( 8 ) THE Revision Petition is therefore dismissed. The Trial Court is directed to expedite the disposal of the suit as expeditiously as possible, and not later than four months from the date of receipt of copy of this order.