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2009 DIGILAW 317 (AP)

Shaik Ahmed Mohammad v. Damodardas Haridas & Sons

2009-04-29

P.S.NARAYANA

body2009
Judgment :- 1. On 20.02.2009, in C.M.A.M.P.No.269 of 2009, this Court granted interim stay on condition of depositing the costs within a period of four weeks. 2. It is stated that the costs had been deposited on 19th March, 2009 in the treasury and the Challan had been produced. 3. An order, dated 7th April, 2009, made by the learned III Senior Civil Judge, City Civil Court, Secunderabad in I.A.No.2106 of 2008 in O.S.No.190 of 2007 is also placed before this Court. The said order reads as hereunder:- “Conditional stay granted. Condition not complied. No representation for petitioner. Hence petition is dismissed.” 4. C.M.A.M.P.No.683 of 2009 is filed to vacate the interim order, dated 20.02.2009, made in C.M.A.M.P.No.269 of 2009 in C.M.A.No.114 of 2009. When the same is coming up for hearing, the learned counsel on record made a request for final disposal of the civil miscellaneous appeal. Hence, at the request of the learned counsel on record, the civil miscellaneous appeal itself is being disposed of finally. 5. Sri T. Ramulu, the learned representing the appellant had taken this Court through the order, which is being challenged in the present civil miscellaneous appeal and would maintain that in the facts and circumstances of the case, allowing the application on condition of deposit of decree costs and also 1/4th of the decretal amount on or before 06.02.2009, that too, without recording any specific reasons, cannot be sustained. The learned counsel also had taken this Court through the respective stands taken in the pleadings by the parties and would maintain that inasmuch as the conditional order made by this Court had been complied with and the costs had been deposited, the appellant be permitted to contest the matter. The learned counsel placed reliance on several decisions to substantiate his submissions. 6. Per contra, Sri S. Niranjan Reddy, the learned counsel representing the respondent/plaintiff had taken this Court through paragraphs 6 and 7 of the order under challenge and would maintain that inasmuch as the learned Judge referred to the docket entries and the conduct of the parties it can be taken that sufficient reasons had been recorded while imposing condition of deposit of costs and also 1/4th of the decretal amount and, hence, the same cannot be said to be onerous. The learned counsel also would maintain that the learned III Senior Civil judge, City Civil Court, Secunderabad made a docket order, on 07.04.2009, dismissing the application seeking to set aside ex parte decree. The learned counsel also explained the scope and ambit of Order IX Rule 13 of the Code of Civil Procedure and further placed reliance on several decisions to substantiate his submissions. 7. Heard the learned counsel on record. 8. In the light of the submissions made by the learned counsel on record, the following points arise for consideration in this civil miscellaneous appeal:- (1) Whether the condition imposed relating to the deposit of suit costs and also 1/4th of the decretal amount by the learned III Senior Civil Judge, City Civil Court, Secunderabad has to be confirmed, or to be disturbed or to be modified, in the facts and circumstances of the case. (2) If so, to what relief, the parties would be entitled to? 9. POINT NO.1:- The parties hereinafter would be referred to as petitioner and respondent as shown in I.A.No.2106 of 2008 in O.S.No.190 of 2009 aforesaid. 10. The petitioner is the defendant in the said suit and he filed an application in I.A.No.2106 of 2008, under Order IX Rule 13 of the Code of Civil Procedure (hereinafter in short referred to as “the Code” for the purpose of convenience), praying for setting aside the ex parte decree, dated 18.08.2008. 11. It is the case of the petitioner that the suit was posted to 04.08.2008 for cross-examination of PW.1 and later, it was adjourned to 11.08.2008, but on that day, the suit was not called during the call work or till 2.00 p.m. and entry was also not made in the “A” diary till 5.00 p.m. It is also stated that the petitioner made enquiries up to 17.08.2008 without any use whatsoever and on 18.08.2008, the counsel for the petitioner was informed by the Bench Clerk that the suit was decreed ex parte on 18.08.2008 and inasmuch as there was no default on the part of the petitioner, an application was filed to set aside the exparte decree, dated 18.08.2008. 12. 12. The respondent/plaintiff resisted the same stating that the suit was posted to 11.08.2008 for cross-examination on costs of Rs.500/- but, when the matter was called during the call work and again during afternoon, neither the petitioner nor his counsel were present and, hence, the petitioner was set ex parte and the suit was posted to 18.08.2008 and on that day, an ex parte decree was passed. Hence, there are no grounds to set aside the ex parte decree. 13. The leaned Judge having formulated the point for consideration at paragraph No.5, recorded reasons at paragraphs No. 6, 7 and 8 of the order under challenge and, ultimately, allowed the application on condition of deposit of suit costs and also 1/4th of the decretal amount into the Court or be before 06.02.2009, failing which, the petition shall stands dismissed. 14. As already aforesaid, on 20.02.2009, this Court granted interim stay on condition of deposit of costs within a period of four weeks from that day. It is stated that the said conditional order had been complied with. No doubt, a docket order, dated 07.04.2009 is also placed before this Court. But, however, inasmuch as it is stated that the conditional order had been complied with and costs had been deposited, the subsequent order made by the learned Judge may not seriously alter the situation. 15. It is no doubt true that the petitioner is expected to be diligent and conscious while prosecuting the litigation. In the light of the stand taken in the counter filed by the respondent/plaintiff, the learned Judge, taking the conduct of the parties into consideration, came to the conclusion that it is just and proper to impose the condition of deposit of the suit costs and also 1/4th of the decretal amount into the Court on or before 06.02.2009. 16. In the light of the stand taken in the counter filed by the respondent/plaintiff, the learned Judge, taking the conduct of the parties into consideration, came to the conclusion that it is just and proper to impose the condition of deposit of the suit costs and also 1/4th of the decretal amount into the Court on or before 06.02.2009. 16. The learned counsel for the appellant/petitioner/defendant placed strong reliance on the decision of the Division Bench reported in POLASANI SUCHARITHA v. MARGADARSI CHIT FUND LTD., MUKARAMPURA, KARIMNAGAR 2007 (5) ALD 293 (DB, wherein the Division Bench observed at paragraph No.14 as hereunder:- “Therefore, the reference is answered in the following terms: (a) The employment of words “upon such terms as to costs, payment into Court or otherwise as it (the Court) thinks fit” confers a power and imposes a legal obligation upon the Court to impose conditions for setting aside an ex parte decree as to costs, as to payment of the decretal amount whole or in part or as to such other conditions as the Court thinks fit, provided onerous conditions shall not be imposed except under special circumstances and for exceptional reasons which have to be stated in the order. (b) However, imposition of conditions for depositing the costs or part or whole of the suit amount as a condition precedent for entertaining the application even before going into its merits is not permissible. (c) The imposition of terms or conditions for setting aside an ex parte decree is in the exercise of judicial discretion of the Court and whether the terms or conditions imposed are reasonable or onerous is a question of fact o the circumstances of each case. (d) No hard and fast rules can be laid down with mathematical precision to govern the exercise of judicial discretion of the Court in arriving at reasonable, equitable and just terms or conditions for setting aside an ex parte decree.” 17. Reliance was also placed on the decisions reported in M/S. GOPAL & CO. v. M/S. KURE BALARAJAIAH SIDDIRAMULU 1994 (1) ALT 410 , JEYPORE SUGAR CO.LTD., v. PAMERLA SURYARAO 1996 (2) ALD 350 , BATHINI SAMBAIAH v. JULURU NARAYAN 2002 (2) ALD 636 , V.K. INDUSTRIES v. M.P. ELECTRICITY BOARD AIR 2002 Supreme Court 1151. 18. Reliance was also placed on the decisions reported in M/S. GOPAL & CO. v. M/S. KURE BALARAJAIAH SIDDIRAMULU 1994 (1) ALT 410 , JEYPORE SUGAR CO.LTD., v. PAMERLA SURYARAO 1996 (2) ALD 350 , BATHINI SAMBAIAH v. JULURU NARAYAN 2002 (2) ALD 636 , V.K. INDUSTRIES v. M.P. ELECTRICITY BOARD AIR 2002 Supreme Court 1151. 18. Further reliance was also placed on the decisions reported in V. PRABHAKARA REDDY v. TENALI MOHANA RAO 2002 (2) DT 192 (AP), V. KASTURI BAI v. P. VARALAKSHMI 1983 (1) APLJ 305 , TADIKONDA SREERAMULU v. M.V.N. BRAHMANANDAM 1979 (2) APLJ 177 (HC), S. GURU MURTHY v. R. LAKSHMANA RAO 2001 (6) ALD 524 , RAMESH v. RATNAKAR BANK LTD., 2001 AIR SCW 4759 RAJESWARA INDUSTRIES v. STATE BANK OF HYDERABAD 1991 (2) ALT 365 , R. RAMA RAO v. V. VENKATESWARLU 1992 (3) ALT 367 , KUMUD LATA DAS v. INDU PRASAD AIR 1997 SC 34 , B. RAJENDRA PRASAD v. K. RAMACHANDRA RAO 1997 (6) ALD 755 and SURAYYA v. THAYARAMMA AIR 1950 Mad. 618 . 19. The learned counsel representing the respondent/plaintiff placed strong reliance on the decision of the Division Bench reported in POLASANI SUCHARITHA’s case (1 supra) and further placed strong reliance on the decisions reported in KALINGA PAINTS & CHEMICALS (P) LTD., v. THE SECRETARY, WORKS DEPARTMENT, GOVERNMENT OF ORISSA AIR 1992 ORISSA 300, M/S. MODERN FUEL INDUSTRY v. INDIAN BANK 1996 AIHC 4623, CHINTAPALLI LAKSHMA RAYUDU v. DASARI NARAYANA RAO 2002 AIHC 421 and V.K. INDUSTRIES v. M.P. ELECTRICITY BOARD, RAMPUR, JABALPUR (2002) 3 SCC 159 . 20. It is no doubt true that no hard and fast rule has been laid down in such cases, and depending upon the facts and circumstances of a particular given case while allowing an application to set aside the ex parte decree certain conditions would be imposed. Whether such conditions imposed are onerous or justifiable or unjustifiable may have to be decided in the facts and circumstances of a particular case. It is difficult to lay down the guidelines exhaustively, in this regard. At best, certain circumstances may be specified, which, at the best, can be said to be illustrative. On a careful analysis of the facts, which had been narrated at paragraphs No.6 and 7, this Court, no doubt, is satisfied that the learned Judge arrived at an appropriate conclusion of imposing certain conditions. At best, certain circumstances may be specified, which, at the best, can be said to be illustrative. On a careful analysis of the facts, which had been narrated at paragraphs No.6 and 7, this Court, no doubt, is satisfied that the learned Judge arrived at an appropriate conclusion of imposing certain conditions. Here is a case where this Court already had granted interim stay on condition of deposit of suit costs and it is stated that the suit costs had already been deposited. In the peculiar facts and circumstances, the respondent/plaintiff is permitted to withdraw the suit costs deposited already without furnishing any security. As far as the imposition of condition of 1/4th of the decretal amount on or before 06.02.2009 is concerned, this Court is satisfied that taking into consideration the respective pleadings of the parties, this portion of the condition being onerous, the same is liable to be set aside. Accordingly, the condition of imposition of deposit of 1/4th of the decretal amount into the Court on or before 06.02.2009 is hereby set aside and it is needless to say that the condition of deposit of suit costs had already been complied with and the same is hereby recorded. 21. POINT NO:2- In the result, the Civil Miscellaneous Appeal is partly allowed modifying the order under challenge to the extent that the condition imposed relating to the deposit of the 1/4th of the decretal amount on or before 06.02.2009 is hereby set aside and inasmuch as the conditional order made by this Court had been complied with and the costs had been deposited as already referred to supra, the respondent/plaintiff is permitted to withdraw the same without furnishing any security. Since the application for setting aside the ex parte decree, dated 18.08.2008 is allowed, the parties are at liberty to participate in the further proceedings and inasmuch the learned counsel for the respondent/plaintiff pleaded urgency, let the learned Judge dispose of the suit itself at an early date, preferably, within a period of four months from the date of receipt of a copy of this order. No order as to costs.