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2005 DIGILAW 1137 (AP)

Ch. Sudhakar v. T. S. R. Anjaneyulu

2005-12-01

GOPALA KRISHNA TAMADA

body2005
( 1 ) THESE two civil revision petitions are directed against the order, dated 15-9-2005 made in i. A. No. 775 of 2004 in O. S. No. 89 of 1998 on the file of III Additional District Judge, warangal. As both the revisions are interrelated, they are taken up together for disposal by this common order. ( 2 ) FOR the sake of convenience, the parties will be referred to as arrayed in the court below. ( 3 ) THE petitioner in C. R. P. No. 5917 of 2005 is the plaintiff, who instituted O. S. No. 89 of 1998 for recovery of money based on a promissory note alleged to have been executed on 1-8-1997. The defendant filed written statement contending that he did not execute the promissory note and took the plea that the plaintiff is a professional money-lender, and as he does not have the required licence, the suit itself is not maintainable. The issues were settled, the plaintiffs evidence was over on 2-7-2004 and the suit was posted for defendant s evidence on 6-7-2004. On that day, as the defendant was absent and also no representation was made on his behalf, the Court below, taking a serious view of the matter, set the defendant ex parte and posted it on 8-7-2004 for judgment. On 8-7-2004, having come to know that the defendant was set ex parte and the suit was posted for judgment, the junior advocate of the Counsel representing the defendant filed a petition under Order 9 Rule 7 C. P. C. narrating the various circumstances as to why the defendant was absent and requested the Court to set aside the ex parte order. However, the Court below dismissed the application by its docket order and passed an ex parte decree on 8-7-2004 as prayed for. The defendant, after coming to know the fact that the suit was decreed, filed i. A. No. 775 of 2004 narrating again the various circumstances as to why he was absent on 6-7-2004 and the junior Counsel filed an application on that day, etc. , and requested the Court to set aside the ex parte decree dated 8-7-2004. A detailed counter-affidavit has been filed by the plaintiff stating that it is not an ex parte decree, but a decree on merits, as such, the application filed by the defendant under order 9 Rule 13 C. P. C. is misconceived. , and requested the Court to set aside the ex parte decree dated 8-7-2004. A detailed counter-affidavit has been filed by the plaintiff stating that it is not an ex parte decree, but a decree on merits, as such, the application filed by the defendant under order 9 Rule 13 C. P. C. is misconceived. It is further contended in the counter that the defendant lacks bona fides in filing the application. Considering the rival contentions advanced by both the Counsel, the Court below, by its order, dated 15-9-2005 while negativing the contention advanced by the learned Counsel for the plaintiff that it is a decree on merits gave a categorical finding that it is an ex parte decree and the petition filed under Order 9 Rule 13 c. P. C. is maintainable and allowed LA. No. 775 of 2004 on condition that the defendant deposits half of the decretal amount. Aggrieved by the said order, the plaintiff preferred C. R. P. No. 5917 of 2005 as stated supra questioning the validity of the order as to whether the decree dated 8-7-2004 is an ex parte decree or a decree on merits, whereas the defendant filed c. R. P. No. 5039 of 2005 stating that the condition imposed by the Court below is onerous. ( 4 ) HEARD Mr. Ch. Ravinder, learned counsel for the petitioner and Mr. T. S. Anand, learned Counsel for the respondent. ( 5 ) NO doubt, it is an old suit of the year 1998, but from the material available on record, it cannot be inferred that the defendant alone is responsible for the abnormal delay in getting the suit taken up for trial. The fact remains that the plaintiff was examined only in the year 2004 and his evidence was closed only on 2-7-2004 and the suit itself was posted for the first time on 6-7-2004 for the evidence on behalf of the defendant. The reasons assigned by the Junior Counsel in the earlier application filed under Order 9 Rule 7 C. P. C. and the reasons assigned in the present application filed by the defendant are one and the same, and to my mind, they appear to be genuine. In fact, had the junior Counsel been present on 6-7-2004 and requested the court for another day for defendant s evidence, probably, the Court would have accommodated him. In fact, had the junior Counsel been present on 6-7-2004 and requested the court for another day for defendant s evidence, probably, the Court would have accommodated him. As the Counsel and the defendant were absent, the Court took a serious view of their conduct and set the defendant ex parte on 6-7-2004. Further, from a perusal of the impugned order as well as the order dated 8-7-2004 decreeing the suit ex parte, it cannot be said that it is a decree on merits, but an ex parte decree. Hence, the contention of the learned Counsel for the plaintiff that it is a decree on merits cannot be accepted and accordingly, C. R. P. No. 5917 of 2005 is dismissed. ( 6 ) COMING to C. R. P. No. 5039 of 2005 filed by the defendant, as already observed, the Court below took a very serious view because of the conduct of the defendant. Had he been present in the Court or a representation was made on his behalf on 6-7-2004, probably the Court below would have accommodated him. ( 7 ) HENCE, this Court is of the view that the condition stipulated by the Court below that the defendant shall deposit half of the decretal amount, in the circumstances of the case, is definitely onerous, but at the same time, the defendant shall not take it for granted that the Courts grant adjournments on mere asking. Hence, it may be sufficient if he is directed to deposit 1/4th of the decretal amount and costs, within a period of six weeks from the date of receipt of a copy of this order. ( 8 ) WITH the said modification, c. R. P. No. 5039 of 2005 is disposed of. As the plaintiffs evidence was over, the suit is coming up for defendant s evidence, it is a suit for money based on the promissory note and also it is a suit of the year 1998, the Court below is directed to dispose it of as expeditiously as possible, preferably, within a period of six months. No costs.