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Andhra High Court · body

2013 DIGILAW 199 (AP)

Mandadi Srinivasa Rao v. Shaik Mehrunnisa

2013-03-18

N.RAVI SHANKAR

body2013
Judgment : The point in this civil miscellaneous appeal is whether the decree dated 22.11.2012 passed in O.S. No.232 of 2011 on the file of the Court of Senior Civil Judge, Bapatla can be treated as an ex parte decree and if so whether there is a sufficient cause to set aside the same. 2. The circumstances which led to the filing of this appeal giving rise to the above point can be stated thus. The suit O.S.No.232 of 2011 has been filed by the respondent herein for recovery of money based on a promissory note. The judgment would show that the plaintiff herself gave evidence as P.W.1 and also examined P.W.2 who is an attestor of the promissory note, which is marked as Ex.A1 in support of her case in the suit. No evidence was let in on behalf of the defendant and it seems that he did not even appear in the matter. The trial Court after considering the matter by its judgment dated 22.11.2012 proceeded to decree the suit on merits. 3. Thereafter the defendant filed an interlocutory application purporting to be under Rule13 of Order IX of Order XVII of the Code Of Civil Procedure, 1908 (CPC) to set aside the above decree on the plea that it is an ex parte decree and pleading illhealth was the cause for his absence. That application was returned by the trial Court on the ground of maintainability. However that application was again called in the Court at the request of the defendant and the trial Court framed a point as to whether that application was maintainable and can be numbered. Answering that point the trial Court by its order dated 23.01.2013 in substance held that the decree in question was not an ex parte decree and decided that point in the negative and rejected the said application. It is questioning that order the defendant filed the present appeal. 4. The argument of the appellant’s counsel is that though he did not lead any evidence and though he did not appear, the trial Court proceeded to dispose of the suit on merits as if he appeared by proceeding under the Explanation to Rule 2 of Order XVII CPC, which it ought not to have done, and it should have proceeded ex parte and therefore, the decree should be treated as an ex parte decree. The trial Court in its order referred to Prakash Chander Manchanda v Janki Manchanda ( AIR 1987 SC 42 )and B.Seshagiri Rao v Sri Ramalingeswara Swamivari Devasthanam (1997 (1) ALT 80)relied upon by the defendant’s counsel but distinguished them as not applicable. It then proceeded to consider two other decisions viz., Vidhyadhar v Manik Rao ( AIR 1999 SC 1441 )and K.Tajaswarup v V.Veena ( 2008 (4) ALT 113 (DB)and held that the decree in question cannot be treated as an ex parte decree. 5. It may at the risk of repetition be noted that as the defendant did not lead any evidence and did not appear in the matter it follows that the Explanation to Rule 2 of Order XVII CPC is not applicable. A reading of the said Explanation would show that where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present. This Explanation gives an exceptional power to the Court to dispose of the suit on merits even in the absence of a party. However the said Explanation itself makes it clear such a power can be exercised only when the party who is absent has let in his evidence or a substantial portion of the evidence from his side. This is an essential requirement. If that requirement is not satisfied the Court has no other go but to proceed only ex parte against him. In fact this was the principle laid down in Prakash Chander Manchanda case (1 supra) and it distinguished this decision as not applicable without any basis to the facts of this case. It appears that the above aspect was not taken to the notice of the trial Court. The other decisions relied upon by the trial Court speak about the proof of defendant’s case or the disproof of the opposite party’s case and their arena is different. It thus follows that the argument of the defendant’s counsel that the decree in question has to be treated as an ex parte decree has to be accepted. 6. The next aspect to be seen is whether there is any sufficient cause to set aside the ex parte decree. It thus follows that the argument of the defendant’s counsel that the decree in question has to be treated as an ex parte decree has to be accepted. 6. The next aspect to be seen is whether there is any sufficient cause to set aside the ex parte decree. It is the case of the petitioner that as he was suffering from illhealth he could not attend the Court and he filed affidavit to that effect in support of the petition to set aside the decree but that was erroneously rejected by the trial Court. In the circumstances, having regard to the affidavit filed by the petitioner about his illhealth and as no serious objection is raised by the other side counsel, I am of the opinion that the defendant can be said to have made out sufficient cause for setting aside the ex parte decree but by putting him to terms. 7. Accordingly this appeal is allowed and the decree in question is set aside but on appellant/defendant depositing a sum of Rs.1,500/- (Rupees one thousand five hundred only) as costs in the trial Court within three weeks from today. On deposit of such costs, the plaintiff is permitted to withdraw the same. The trial Court, depending upon the volume of its business, may take up the suit at an early date and proceed to dispose of it from the stage where it was before passing the decree in question on day-to-day basis by giving sufficient opportunity to both sides.8. The civil miscellaneous appeal is, accordingly, allowed. No costs.