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2024 DIGILAW 65 (AP)

Duvvuru Saraschandra v. Sakaria Surekha

2024-01-12

K.MANMADHA RAO

body2024
JUDGMENT : (K. Manmadha Rao, J.) As the issue involved in these three matters is one and the same, these matters are taken up together for disposal by this Common Order. 2. Originally, the suit in O.S.No.196 of 2016 was filed by the plaintiff for recovery of amount of Rs.20,16,209/- on the file of I Additional District Judge, Nellore (for short "the Court below") from the defendants together with costs. When the suit was posted on 02.12.2021 for trial, the plaintiff filed PW1 affidavit and all documents were marked. However, as the defendants called absent on that day, they were made set ex parte and the matter was posted for judgment on 15.12.2021. When the defendants came to know that the matter was posted for judgment, immediately they moved the present impugned applications vide LA No.436 of 2021 under Order IX Rule 9 CPC read with Section 151 CPC seeking to set aside the ex parte order dated 02.12.2021; I.A No.437 of 201 under Section 151. CPC seeking to reopen the above suit for cross examination of PW1 and PW2 and for costs and I.A No.438 of 2021 under Order XVIII Rule 17 CPC read with Section 151 CPC seeking to recall PW1 and PW2 for the purpose of cross examination. The same were dismissed by the Court below vide common order dated 04.01.2022. Aggrieved by the same, the present three matters came to be filed. 3. Heard Sri V.Siva Prasad Reddy, learned counsel for the appellant/petitioners and Sri S.Harinadha Reddy, learned counsel for the respondents. 4. On hearing, learned counsel for the appellants/petitioners submits that the order passed by the Court below is highly illegal, irregular and flagrant violation of law. He submits that the Court below erred in not allowing the petitions filed by the petitioners. He mainly contended that the Court below failed to consider that at any stage the Court can set aside the ex parte order. He submits that the Court below on previous occasion i.e., on 23.11.2021 as the plaintiff called absent and he could not lead his evidence on many adjournments, the lower Court posted the matter for dismissal and when the matter was posted on 02.12.2021, there was no representation on the defendants side, on that day itself, without giving fair chance, the Court below has denied the opportunity of cross-examination for the better appreciation of the facts erroneously dismissed the applications. 5. On the other hand, learned counsel for the respondents contended that the suit was posted with condition of dismissal, as such the plaintiff/respondent filed affidavit of PW1, but the petitioners absent and hence the Court set the petitioners ex parte and that the Court below has rightly dismissed the applications. Therefore, learned counsel refuted the submissions made by learned counsel for the appellants/petitioners. 6. On a perusal of the material available on record and on hearing the submissions of learned counsel, it is observed that the suit pertains to the year 2016. When the said suit was posted to 23.11.2021, the plaintiff called absent and it was posted to 02.12.2021 under the caption `for dismissal'. But chief affidavit of PW1 was filed, Ex.A1 to Ex.A9 were marked on that day. However the defendants called absent, no representation, again the case was kept aside and as there was no representation even at 3.45 P.M. they were set ex parte and therefore the matter was posted to 14.12.2021 for further evidence. On the said date i.e., on 14.12.2021 chief affidavit of PW2 was filed and reported no further evidence, arguments heard and the suit was posted to 15.12.2021 for judgment, Meanwhile, on 15.12.2021 the appellants/defendants moved the present impugned applications. 7. Under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the case, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither t go to he High Court to inquire as to what is happening in the High Court with regard to his case nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. 8. It is no part of his job. 8. A practice has grown up in the High Court amongst the lawyers that they remain absent when they do not like a particular Bench. May be he Is better informed on this matter. Ignorance in this behalf is our bliss. Even if I do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute? What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If I reject this petition, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. I have no material for ascertaining that aspect of the matter. I say nothing more on that aspect of the matter. However, I cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. In view of the above, the party is not responsible because he has done whatever was possible and was in his power to do, the costs should be recovered from the advocate who absented himself. 9. On considering the submissions of learned counsel for the appellants/petitioners and also carefully perused the affidavits filed with the applications to set aside the ex parte decree, to re open the above suit for cross examination and to recall the evidences of PW 1 and PW2 for the purpose of cross examination, this Court is of the considered view, the foreclosure of the defendant's right to cross-examine the PW1 & PW2 has resulted in grave prejudice to the right of defence of the defendants/petitioners herein. Hence, this Court deems fit to allow these matters. 10. Accordingly, all these matters are allowed. The impugned orders in all these matters are hereby set aside. The Court below is directed to recall and reopen the plaintiffs witnesses (PW1 86 PW2) evidence and permit the petitioners/defendants to cross examine PW1 & PW2. Hence, this Court deems fit to allow these matters. 10. Accordingly, all these matters are allowed. The impugned orders in all these matters are hereby set aside. The Court below is directed to recall and reopen the plaintiffs witnesses (PW1 86 PW2) evidence and permit the petitioners/defendants to cross examine PW1 & PW2. Further, since the suit pertains to the year 2016, the Court below is directed to dispose of the suit, as expeditiously, as possible, preferably, within a period of three (03) months from the date of receipt of a copy of this order. There shall be no order as to costs. 11. As a sequel, miscellaneous applications pending, if any, shall also stand closed.