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2008 DIGILAW 27 (AP)

Siri Chit Fund (P) Ltd. , Warangal v. N. Laxma Reddy

2008-01-22

L.NARASIMHA REDDY

body2008
ORDER: - Way back in the year 2001, the petitioner filed O.S.No.914 of 2001 in the Court of I Additional Senior Civil Judge, Warangal, against the respondents for recovery of a sum of Rs.1,09,015/-, covered by a chit transaction. Shortly thereafter, the suit became ripe for trial, and on behalf of the petitioner an affidavit, in lieu of chief-examination was filed, by PW-1, on 01-08-2002. It was adjourned to 08-08-2002, at the request of the counsel for the respondents for cross-examination. On that day, the witness was not cross-examined, and the suit was adjourned to 14-08-2002. The trial Court dismissed the suit for default on the ground that PW-1 did not turn up. 2. Petitioner filed I.A.No.681 of 2002 under Order 9 Rule 9 C.P.C., with a prayer to set aside the order dated 14-08-2002. This I.A. was dismissed on 28-06-2004, on the ground that process was not paid for the respondents. Thereupon the petitioner filed I.A.No.794 of 2004 under Order 9 Rule 4 C.P.C., with a prayer to set aside the order dated 28-06-2004. The trial Court dismissed the I.A., through its order dated 12-06-2007. Hence, this C.R.P. 3. Sri Subba Rao Korrapati, learned counsel for the petitioner, submits that the very dismissal of the suit for default, was not justified inasmuch as on two earlier occasions the witness, when present in the Court, was not cross- examined, on behalf of the respondents, and the trial Court dismissed the suit for default, without even examining as to whether there existed any justification for PW-1, in not being present on the third occasion. He contends that once the respondents were represented by an Advocate before the trial Court, there was no necessity for payment of process fee in the I.A., and despite the same, the petitioner was prepared to comply with it. He submits that the trial Court had taken a technical view of the matter and dismissed the I.A.No.794 of 2004. 4. Sri T.C.D. Sekhar, learned counsel for the respondents, on the other hand, submits that the petitioner did not exhibit the required amount of attention in pursuing the proceedings. He contends that the process was due in the application filed under Order 9 Rule 9 C.P.C., for 2nd respondent, who was not represented by an Advocate, by that time, and that no interference is warranted with the order under revision. 5. He contends that the process was due in the application filed under Order 9 Rule 9 C.P.C., for 2nd respondent, who was not represented by an Advocate, by that time, and that no interference is warranted with the order under revision. 5. Different Rules of Order 9, enable the Courts to terminate the proceedings, if it notices any default on the part of the respective parties, or their counsel. It may be some-what tempting for a Court to terminate such proceedings by throwing the blame upon the parties. However, before resorting to such steps, the Courts are required to be cautious and to verify, whether the default, that may be attributed to a party; is persistent, or was on account of unavoidable circumstances. Termination of proceedings without trial, howsoever attractive and tempting it may be, would, in the ultimate analysis, not only leave the dispute unresolved, but also render the time and expenditure of the parties spent thus far, unproductive. 6. In the instant case, the record discloses that after the trial of the suit was taken up, on its part, the petitioner filed the affidavit of its witness, in lieu of chief-examination, and on two occasions, i.e. on 01-08-2002 and 08-08- 2002, the witness was not cross-examined, on account of the fact that the respondents were not ready to proceed with the same. On 14-08-2002, the suit was dismissed for default, only on the ground that the witness did not turn up. The trial Court may have treated that ground as handy, but has not exhibited fairness in penalizing the petitioner, on account of a casual absence of its witness. Even if there did not exist any justification for PW-1, in not being present, it ought to have eschewed his evidence, and directed the petitioner to come forward with any further evidence. The unjustified impatience exhibited by the trial Court, has made the proceedings to wait unproductively, for more than half a decade. 7. Notwithstanding the haste, with which the trial Court dismissed the suit for default, it ought to have exhibited a semblance of seriousness, at least, when the petitioner came forward with an application under order 9 Rule 9 C.P.C. It is not known as to how and why the petitioner was required to pay process fee, when the respondents 1, and 3 to 6 were already represented through their counsel. Once the 2nd respondent herein was set ex parte, by the time the suit itself was dismissed for default, there was no necessity for requiring the petitioner to pay process fee, for him. The I.A. was kept pending for about two years, without any valid reasons. 8. An interesting aspect of the matter is that when it was noticed that the process fee could not be paid in time, and the petitioner expressed its willingness to pay it, instantly. The trial Court had availed the opportunity and dismissed the I.A.No.681 of 2002, obviously, because it wanted to avoid the burden of undertaking the trial of the suit. 9. The approach of the trial Court in disposing of I.A.No.794 of 2004 is some-what curious. It has used very expensive derogatory remarks against the petitioner, such as by branding it as "totally irresponsible, negligent, and intentionally committed default in proceeding with the case". Had the trial Court bestowed its attention to the manner in which it has dealt with the suit and the earlier application, it would have hesitated to employ such expressions. The trial Court has thrown the blame on the petitioner only to justify otherwise untenable steps taken by it, on earlier occasions. When it is the order of the day, to encourage parties, who have recourse to respectable resolution of disputes by approaching the Courts, that too, by arranging camps, in all possible locations, under one scheme, or the other; shutting the doors for a litigant, and subjecting it to such harsh treatment; cannot be appreciated. 10. The C.R.P. is accordingly allowed, and the order under revision is set aside. 11. Having regard to the fact that the matter was languishing before the Court ever since 2001, on one pretext or the other, and since the parties are already before this Court, it is directed that not only I.A.No.794 of 2004, but also I.A.No.681 of 2002 shall stand ordered, and the suit is restored to file. The trial Court shall expedite the disposal of the suit. 12. There shall be no order as to costs.