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2011 DIGILAW 683 (AP)

M. Ramanjulu v. Sapparaju Venkata Seshaiah

2011-08-25

G.V.SEETHAPATHY

body2011
ORDER :- This revision is directed against the order dated 22.10.2010 in CFR (IA) No.3165 of 2010 in OS No.338 of 2009 on the file of the Principal Junior Civil Judge, Gudur, wherein the said application filed by the petitioner herein under 9, Rule 13 CPC for setting aside the ex parte decree dated 21.7.2010 was rejected, as not maintainable. 2. Heard both sides. Perused the record. 3. The respondent herein filed suit against the petitioner for recovery of a sum of Rs.97,245/- due under a pronote dated 12.3.2008 said to have been executed by the petitioner herein for borrowal of Rs.70,000/-. The petitioner herein filed written statement denying the borrowal and execution of the suit pronote and contending that the defendant borrowed only Rs. I 0,000/fTom the plaintiff in October 2000 and at the instance of the plaintiff, he signed on a blank pronote and that the suit pronote was fabricated by the plaintiff as if he borrowed Rs.70,000/- on 12.3.2008. The trial Court framed necessary issues. During the course of trial, the plaintiff was examined as PW 1 and the attestor of the suit pronote was examined as PW2 and Exs.A 1 to A3 were marked on behalf of the plaintiff. No oral or documentary evidence was adduced by the defendant. After hearing both sides, the learned Junior Civil Judge by judgment dated 21.7.20 I 0 decreed the suit for a sum of Rs.97,245/-. Thereafter, the defendant filed the present un-numbered application CFR No.3165 of 2010 on 18.8.2010 under Order 9, Rule 13 CPC praying the Court to set aside the ex parte decree dated 21.7.2010. 4. In the affidavit filed in support of the application, the petitioner stated that after closure of the plaintiffs evidence, the defendant was also examined as DW1 and the matter was coming up for cross-examination and it stood posted to 15.7.2010 as last chance and on that day as there was no representation on his behalf, the evidence was closed and the matter was posted to 16.7.20 I 0 for arguments and thereafter on 21.7.2010 the judgment was pronounced. It is further pleaded' by the petitioner as follows: "I submit I am suffering ill health and could not attend for my Counsel and informed the same, to represent not ready. But the concerned advocate did not represent the same. It is further pleaded' by the petitioner as follows: "I submit I am suffering ill health and could not attend for my Counsel and informed the same, to represent not ready. But the concerned advocate did not represent the same. Now I am under the impression till today and two days back, when I approached my Counsel he informed the same". 5. The above averments in the affidavit do not make any sense nor does it carry any meaning. Be that as it. may, assuming for a moment that the petitioner intended to plead that owing to ,illness he could not attend the Court, he has not filed any medical certificate in proof of the alleged illness. Even the affidavit does not disclose the nature of the illness or period during which the petitioner was suffering from any such illness. The plea of the petitioner that he could not attend the Court and face the cross examination owing to illness, therefore remains totally unsubstantiated. 6. That apart, the respondent opposed the application on the ground that the judgment and decree passed were not ex parte and they were delivered on merits and therefore, the petition filed under Order 9, Rule 13 CPC is not maintainable. 7. A perusal of the copy of the judgment would disclose that the defendant was nowhere set ex parte. In the preamble of the judgment it is noted that the defendant was represented by Counsel, Sri C. Raghunadha Reddy till the date of the judgment. In Para 6 of the judgment, it is noted that the arguments of the learned Counsel for the plaintiff and the defendant were also heard. The judgment would also disclose that the trial Court after extracting all pleadings of both parties and stating the issues framed in the suit and the evidence oral and documentary adduced by the plaintiff, has noted that on behalf of the defendant, no oral or documentary evidence was adduced. However, arguments of both sides were heard and distinct findings on the issues were recorded after discussing the evidence pertaining to the same. On Issue No.1 it was held that the suit pronote was true, valid and supported by consideration and on Issue No.2 it was held that the plaintiff was entitled to recover suit amount, consequently, suit was decreed with costs and future interest. On Issue No.1 it was held that the suit pronote was true, valid and supported by consideration and on Issue No.2 it was held that the plaintiff was entitled to recover suit amount, consequently, suit was decreed with costs and future interest. Thus, the judgment shows that it was not passed ex parte, but on the other hand, it was delivered on merits after hearing both sides and also appreciating the evidence available on record. 8. Learned Counsel for the petitioner would rely upon the decision in Rajkumar v. G. Anasuya, 1997 (4) ALO 114 = 1997 (4) ALT 77 , wherein this Court held that 'an application under Order 9, Rule 13 CPC was maintainable when the defendant's side evidence was closed as they were not ready with evidence'. The above decision is not applicable to the facts of the present case for the reason that the petitioner/defendant was examined as DW1, but he however failed to appear for cross-examination and thereafter, the petitioner/defendant participated in further proceedings of the trial and the arguments of learned Counsel were also heard before delivering judgment. 9. Learned Counsel for the petitioner relied on another decision in Daka Venkatrami Reddy v. Central Bank of India, Ongole, 2000 (2) ALO 565, wherein, this Court held as follows: "Mere physical presence on the part of the defendant Or his Counsel does not make the decree as one under Order 17 Rule 3 CPC if as a matter of fact the defendant did not participate in the hearing of the case. Therefore, the lower Court is not right in coming to the conclusion that it was a decree passed under Order 17, Rule 3 CPC. It is a decree passed only under Order 17, Rule 2 CPC. Therefore, the petition filed by the appellant under Order 9, Rule 13 CPC is maintainable." 10. The above decision is also not applicable to the facts of the present case, for the reason that the defendant through Counsel has in fact participated in further proceedings by submitting his arguments. Therefore, the petition filed by the appellant under Order 9, Rule 13 CPC is maintainable." 10. The above decision is also not applicable to the facts of the present case, for the reason that the defendant through Counsel has in fact participated in further proceedings by submitting his arguments. Order 17 Rule 3 CPC states that 'where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is, absent proceed under Rule 2'. Under Rule 2, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order, where on the date of hearing of the suit, the parties or any of them fail to appear. 11. In the present case, though DWI failed to appear for cross-examination, he however participated through Counsel in further proceedings of the trial and his Counsel's arguments were also heard as can be seen from the judgment. In the impugned order also, the learned Junior Civil Judge has reiterated that on 16.7.2010 after hearing the arguments of both Counsels for plaintiff and the defendant, the judgment was reserved and the judgment was pronounced on 21.7.2010 after issuing notice to both parties. Under Rule 3(a) of Order 17, the Court is empowered to proceed to decide the suit forthwith notwithstanding default by any of the parties, to adduce evidence. The presence of the defendant before the trial Court was through his Counsel, whose arguments were also heard. 12. In Kalagara Hari /abu v. Edupuganti Krishna Rao, 1996 (4) ALD 244 , it was held as follows: "... ..It is not disputed that the case was adjourned at the instance of the plaintiff on two prior occasions and the plaintiff was given to understand that on the next date of hearing he will have to lead evidence. In spite of giving this opportunity, the plaintiff refused to lead evidence on one pretext or the other. ..It is not disputed that the case was adjourned at the instance of the plaintiff on two prior occasions and the plaintiff was given to understand that on the next date of hearing he will have to lead evidence. In spite of giving this opportunity, the plaintiff refused to lead evidence on one pretext or the other. The reason put forward by the plaintiff did not convince the Subordinate Judge and therefore he proceeded to dismiss the suit. Under these circumstances, it must be held that the order of dismissal by the learned Judge will fail within the ambit of Order 17, Rule 3 CPC. This Court has come to the aforesaid conclusion for the reason that the Court would not function at the mercy or the courtesy of the parties. The discipline in the Court has to be maintained and therefore the learned Judge passed the order of dismissal which has to be interpreted as an order under Order 17, Rule 3 CPC and not under Order 17, Rule 2 CPC." 13. The principle laid down in the above case applies on analogy to the present case and the only difference being that in the above case, the default was on the part of the plaintiff and therefore, suit ended in dismissal, whereas in the present case, owing to the default on the part of the defendant, the suit was decreed. The above decision makes reference to the decision in M Agaiah v. Mohd. Abdul Kareem, AIR 1961 AP 201 (FB), wherein, the Full Bench of this Court held as follows: "Where a party who is granted time to perform some act not only fails to do it but is also absent on the date to which the hearing is adjourned it is Rule 2 and not Rule 3 that applies. Rule 3 comes into operation only where the parties are present and are prepared to proceed with the further hearing of the case but default of the kind mentioned in that rule is committed." 14. In the present case also, it is Rule 3 which applies because the petitioner/ defendant was not only present through his Counsel, but also he participated in further proceedings by submitting the arguments through Counsel. Inasmuch as the judgment and decree fall within the ambit of Order 17 Rule 3 CPC, the petition filed under Order 9 Rule 13 CPC is not maintainable. Inasmuch as the judgment and decree fall within the ambit of Order 17 Rule 3 CPC, the petition filed under Order 9 Rule 13 CPC is not maintainable. 15. In the circumstances, the impugned order rejecting the application filed' under Order 9, Rule 13 CPC does not therefore call for any interference by this Court in exercise of the revision jurisdiction, as there is no illegality or material irregularity in the impugned order. 16. In the result, the civil revision petition is dismissed. No order as to costs.