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2005 DIGILAW 553 (AP)

R. Purushothama Reddy v. Apuroopamma

2005-06-27

L.NARASIMHA REDDY

body2005
L. NARASIMHA REDDY, J. ( 1 ) THIS revision is filed by the plaintiffs in o. S. No. 22 of 1995 on the file of the Additional senior Civil Judge, Chittoor. They feel aggrieved by an order passed by the trial court, setting aside an ex parte decree. ( 2 ) THE petitioners filed the suit against the respondents for the relief of specific performance of an agreement of sale. The 1st respondent is the mother of the 2nd respondent. They are residents of Hyderabad. Soon after they received summons in the suit, they filed a written statement. The suit was posted for trial on 3-12-1998. On the ground that the respondents did not attend the Court on 3-12-1998, the trial Court set them ex parte and posted the suit for ex parte evidence. On 7-12-1998, ex parte evidence of plaintiffs was recorded and ultimately, an ex parte decree was passed. ( 3 ) THE respondents-defendants filed i. A. No. 43 of 1999 under Order 9 Rule 13 of c. P. C. , to set aside the ex parte decree. The 2nd respondent filed an affidavit in support of the I. A. He stated that his mother is 78 years old and that she suffered from acute hypertension in the first week of December, 1998. It was also his case that he was the gerson to attend on his old mother and thereby could not attend the Court. The medical certificate issued by a local Doctor was also filed. ( 4 ) THE petitioners-plaintiffs filed a counter affidavit denying the allegations contained in the affidavit. They took exception to the manner in which it is filed and pleaded that though the I. A. was said to have been presented before the trial Court in December, 1998, itself, they received notice only in february, 1999. They further pleaded that on the basis of the ex parte decree, they filed e. P. No. 20 of 1999 and not only a sale deed was executed by the Court but also possession of the property was delivered. They also pleaded certain equities in the land, since they have spent huge amounts towards the development of the land, subsequent to the so-called delivery of possession. They also pleaded certain equities in the land, since they have spent huge amounts towards the development of the land, subsequent to the so-called delivery of possession. ( 5 ) THE trial Court found that the very cause title in the plaint was defective in describing the ages of the respondents, and that there was ample justification for the absence of the respondents on the relevant date. It ultimately allowed the LA. and set aside the ex parte decree. ( 6 ) SRI M. Sivananda Kumar, learned counsel for the petitioners, submits that the so called illness of the 1st respondent was pleaded as an excuse for the failure to appear before the trial Court on the relevant date, and that there is no material to support the claim. He further contends that the respondents have not taken any steps for about five years and in the meanwhile substantial developments in the form of execution of sale deed and delivery of possession etc. , have taken place. ( 7 ) SRI K. Venu Madhav, learned counsel for the respondents, on the other hand, submits that the respondents were prompt in filling the written statement and only on the ground that they did not appear on a particular date, that trial Court proceeded to set them exparte and immediately thereafter to pass an ex parte decree. He submits that the failure of the respondents to appear before the trial Court on 3-12-1998 was neither wilful nor wanton but was occasioned on account of the illness of the 1st respondent, who was aged 78 years. He further contends that though the application under Order 9 rule 13 of C. P. C. , was filed within few days, after the ex parte decree was passed, the petitioners have chosen to take the risk of proceeding to execute the decree and they cannot plead the same as a ground to defeat the rights of the respondents. ( 8 ) IT is rather surprising that an application under Order 9 Rule 13 of C. P. C. , filed in december, 1999; was kept pending for nearly five years. Apart from the question as to who exactly is the person responsible for such a delay, it needs to be recognized that many avoidable steps have taken place, in the meanwhile. Apart from the question as to who exactly is the person responsible for such a delay, it needs to be recognized that many avoidable steps have taken place, in the meanwhile. ( 9 ) SOON after the respondents received the notice in the suit, they entered appearance and filed the written statement. It is not as if the suit was posted for the purpose of any specific steps, to be taken by the respondents. Even assuming that the suit was otherwise ripe for trial and that the respondents did not appear before the Court on that day, the trial court could have proceeded with the recording of the evidence on the plaintiffs side. Mere absence of defendants would not enable the Court to pass a decree. There are several steps to be taken by the Civil Court before a suit is decreed. Even where the defendant remained exparte, the Court has to record definite finding on the relevant issues, particularly when the written statement was filed. Assuming that the respondents did not have any justification in remaining absent, the trial Court was under obligation to require the petitioners to prove and establish their case, by examining the concerned witnesses and findings ought to have been recorded on each and every issue framed by the Court. ( 10 ) IT is a matter of record that the respondents are residents of Hyderabad and the suit is filed at a distance of about 650 kilometres. They are not expected to attend the Court on each and every date of hearing. It was not as if the suit was pending for years and decades together on account of non-cooperation on the part of the respondents. The suit is of the year 1998. Written statement was filed and the only date on which the respondents were absent was 3-12-1998. The record does not disclose that there was any persistent absence on the part of the respondents, prior to that date. ( 11 ) THE petitioners described the age of the 1st respondent as 60 years in the plaint. Curiously they have shown the age of her son as 48 years. The trial Court took note of this abnormality and callousness with which the pleadings prepared. ( 11 ) THE petitioners described the age of the 1st respondent as 60 years in the plaint. Curiously they have shown the age of her son as 48 years. The trial Court took note of this abnormality and callousness with which the pleadings prepared. It took into account the medical certificate issued by the Doctor both as regards the age of the 1 st respondent and on the factum of her taking treatment in the hospital, at the relevant point of time. ( 12 ) ONCE it has emerged that there was no deliberate and wilful absence on the part of the respondents and that On the relevant date, the respondents were not required to take any particular step, the exparte decree deserved to be set aside. Hence, no exception can be taken to the order under revision. ( 13 ) IT is true that the petitioners proceeded with the ex parte decree and got the sale deed executed through the Court. It is well settled that once an application is filed under order 9 Rule 13 of C. P. C. , it is not at all advisable or proper for a party, or for that matter, the Court, to proceed to execute the ex parte decree. The E. P. came to be filed nearly nine months subsequent to the filing of the I. A. , under Order 9 Rule 13 of C. P. C. Within that time, the trial Court could have decided the I. A. filed under Order 9 Rule 13 of C. P. C. and left the parties to work out their remedies. The trial Court and executing Court were one and the same. The petitioners have run a risk, whether calculated or otherwise, in proceeding with the execution, despite the fact that the application filed Order 9 Rule 13 of C. P. C. was pending. ( 14 ) HENCE, the Civil Revision Petition is dismissed. There shall be no order as to costs.