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2009 DIGILAW 447 (AP)

Sri Sarveda Bhatla Syamprasad v. A. Chandramohan

2009-07-10

R.KANTHA RAO

body2009
Judgment : This appeal is directed against the ex parte decree and judgment dated 05.09.2000 passed in O.S.No.149 of 2000 by the V Senior Civil Judge, City City Court, Hyderabad. 2. The defendant before the trial Court is the appellant herein. 3. The respondent (plaintiff) instituted the suit against the appellant basing on the promissory note for recovery of Rs.2 lakhs with interest. As could be seen from the decree and judgment of the learned trial Court, the appellant herein, though served with summons, did not appear and file his written statement and consequently, he was set ex parte. Thereafter, the respondent examined himself as PW-1 and marked Ex.A-1, promissory note. 4. Thereupon, the learned trial Court delivered the following decree and judgment: "Suit is filed for recovery of Rs.2 lakhs from the defendant. The plaintiff's case is that the defendant borrowed an amount of Rs.2 lakhs from him on 10.03.1999 and has executed a pronote on the same day promising to repay the same. The defendant utilized the amount for the school run by his wife Shashikala. The defendant failed to repay the amount within one month as agreed and so he is liable to pay interest at 24% p.a. Since the defendant did not pay the amount as agreed. The present suit is filed. The defendant though served with summons, called absent and set ex parte. On behalf of the plaintiff PW-1 is examined and marked Ex.A-1. from the undisputed and unchallenged oral and documentary evidence consisting of PW-1 and Ex.A-1 the plaintiff proved his case. Hence the suit is decreed for Rs.2 lakhs with costs and the future rate of interest is at 12% p.a. from the date of the suit till realization on the principal amount." 5. Challenging the said decree and judgment, the appellant preferred the present appeal. 6. It has been contended on behalf of the appellant that the suit summons were not served on the appellant, Ex.A-1 promissory note was not proved by the respondent as per the provisions of the Evidence Act and also granting interest @ 24% per annum is contrary to law. 7. I have heard the learned counsel appearing for the appellant as well as the respondent. 8. 7. I have heard the learned counsel appearing for the appellant as well as the respondent. 8. The learned counsel for the appellant would submit that except marking Ex.A-1, promissory note through PW-1, no evidence was adduced on behalf of the respondent and the trial Court erred in decreeing the suit in a summary manner. 9. On the other hand, the learned counsel appearing for the respondent would submit that the judgment passed by the trial Court is strictly in accordance with the procedure prescribed under law and as such, the decree and judgment cannot be set aside in this appeal. 10. Perusal of the certified copy of the judgment passed by the learned single Judge of this Court in C.M.A.No.3023 of 2003 clearly indicates that the appellant herein filed I.A.No.457 of 2003 in O.S.No.149 of 2000 before the trial Court to set aside the ex parte decree, and the same was dismissed, against which C.M.A.No.3023 of 2003 was filed before this Court contending that there was no valid service of summons on the defendant. The learned single Judge by his judgment in C.M.A.No.3023 of 2003 held that there is valid service of summons in accordance with Rule 15 of Order V of CPC and I.A.No.457 of 2003 was filed on 17.03.2003 i.e. after lapse of more than 2 1/2 years and therefore, is barred by limitation. 11. The said judgment passed by the learned single Judge in the above mentioned C.M.A. became final and therefore, it is no longer open for the appellant to contend that there is no valid service of summons against him. 12. The only question therefore remains, to be considered is whether the decree and judgment passed by the learned trial Court ex parte is liable to be set aside on the ground that the respondent did not prove his claim. 13. Perusal of the impugned judgment passed by the trial Court clearly indicates that the learned trial Court applied its mind to the averments of the plaint filed by the respondent, perused Ex.A-1, promissory note and held that the suit claim is proved by the undisputed and unchallenged oral and documentary evidence consisting of PW-1 and Ex.A-1. 14. As to the contention that the judgment and decree passed by the trial Court is not in accordance with law, it may be pointed out that the promissory note is not a compulsorily attestable document. 14. As to the contention that the judgment and decree passed by the trial Court is not in accordance with law, it may be pointed out that the promissory note is not a compulsorily attestable document. The said document can be proved without examining the attestors. Further, there was no evidence on behalf of the appellant and he did not even file the written statement. From the judgment in C.M.A.No.3023 of 2003 it is made out that the appellant filed I.A.No.457 of 2003 to set aside the ex parte decree only after 2 1/2 years after passing of the decree. 15. Furthermore, according to sub-rules 2 and 4 of Rule 5 of Order VIII of CPC "where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved." 16. Further "whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment". 17. Therefore, the above mentioned provisions of Order VIII of CPC empowers the Court to pronounce the judgment on the basis of the facts contained in the plaint, but the Court has the discretion requiring any fact contained in the plaint to be proved. 18. The decree and judgment passed by the trial Court, therefore, is strictly in accordance with law and there is absolutely no substance in the contention that Ex.A-1, promissory note was not proved. The question of proof of Ex.A-1 also does not arise because when the appellant did not file his written statement, the Court is empowered to pronounce the judgment only basing on the facts contained in the plaint. 19. Moreover, in this case, from the discussion made in the foregoing paragraphs, it is obvious that the appellant did not take steps to set aside the ex parte decree passed against him till 2 1/2 years from the date of passing of decree. In C.M.A.No.3023 of 2003, the learned single Judge of this Court clearly held that there is valid service of summons and the petition filed by the appellant to set aside ex parte decree before the trial Court is clearly barred by limitation. In C.M.A.No.3023 of 2003, the learned single Judge of this Court clearly held that there is valid service of summons and the petition filed by the appellant to set aside ex parte decree before the trial Court is clearly barred by limitation. On account of the laches on the part of the appellant and keeping in view that the decree is for payment of money, I absolutely see no merit in this appeal. 20. In the result, the decree and judgment passed by the trial Court is confirmed and the appeal is dismissed with costs.