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2025 DIGILAW 1135 (AP)

Indireddy Ramanjaneyulu Reddy, S/o Late Indireddy Chinna Venkata Reddy v. Indireddy Venkataramana Reddy, S/o Late Indireddy Chinna Venkata Reddy

2025-10-29

VENKATESWARLU NIMMAGADDA

body2025
ORDER : VENKATESWARLU NIMMAGADDA, J. 1. This civil revision petition under Article 227 of the Constitution of India is filed challenging the order passed by the Junior Civil Judge-cum-Judicial Magistrate of First Class, Kamalapuram in I.A.No.514 of 2024 in O.S.No.23 of 2020 dated 23.08.2024. 2. The parties will hereinafter be referred as arrayed before the Trial Court, for the sake of convenience. 3. The brief facts of the case are that Respondent No.1/Plaintiff filed suit against the petitioner/Defendant No.1 for recovery of suit amount due under the bank transactions and for other reliefs. The said suit was posted to 06.12.2021 for appearance and filing written statement. Neither Petitioner/Defendant No.1 nor his counsel attended the Court on 06.12.2021. Since, there was no representation on behalf of petitioner/Defendant No.1, the Trial Court passed an order of ex parte. 4. Before the Trial Court, the petitioner/Defendant No.1 herein contended that he was suffering from Jaundice and has taken country medicines, as such, he could not attend the Court on the date of hearing and that he has got good case in the suit and there are chances to succeed the said suit by him. 5. Respondent No.1/Plaintiff filed counter affidavit before the Trial Court denying material averments, while contending that that the petitioner/Defendant No.1 has not filed any medical certificate along with the petition and not shown the name of the doctor and the place of treatment and other essential particulars of the treatment, but simply referred in the affidavit that he had fell sick due to Jaundice and has taken country made medicine. As such, no proper and good cause was assigned by the petitioner/Defendant No.1 for his non- appearance or his counsel on 06.12.2021 and unless the petitioner/Defendant No.1 assigns good cause for his non- appearance, he is not entitled to have the exparte order being set aside and the present application is also filed after lapse of 2 ½ years without any genuine reasons and requested to dismiss the petition. 6. Upon hearing both the counsel, the Trial Court dismissed I.A.No.514 of 2024 in O.No.23 of 2020 dated 23.08.2024, observing that there are no sufficient reasons for non-appearance of petitioner/Defendant No.1 and his counsel and non filing of any documentary evidence to believe the cause shown by the petitioner/Defendant No.1 is true and correct. 6. Upon hearing both the counsel, the Trial Court dismissed I.A.No.514 of 2024 in O.No.23 of 2020 dated 23.08.2024, observing that there are no sufficient reasons for non-appearance of petitioner/Defendant No.1 and his counsel and non filing of any documentary evidence to believe the cause shown by the petitioner/Defendant No.1 is true and correct. Aggrieved by the order passed by the Court below in I.A.No.514 of 2024 in O.No.23 of 2020 dated 23.08.2024, the present civil revision petition is filed. 7. During hearing, Sri S.S. Bhatt, learned counsel for the petitioner/Defendant No.1 mainly contended that the Trial Court ought to have allowed the application filed by the petitioner/Defendant No.1, as it would cause no prejudice to Respondent No.1/Plaintiff. Since the petitioner/Defendant No.1 suffered from infection to his liver and severe jaundice, he could not attend the Court and he could not give instructions to his counsel, thus, he was incapacitated due to his illness to take care of the subject suit. He further contended that the Courts should be liberal while dealing with such matters by imposing costs or conditions and permit the petitioner/Defendant No.1 to take part in the trial of the suit. He further contended that, medical certificate would not be given for administering the country medicine and asking for doctor certificate is impermissible. Learned counsel further contended that, there is no limitation to set-aside the application filed under Order IX Rule 7 C.P.C since the suit is pending and coming for cross examination of P.W.1. Therefore, the application is not barred by limitation. In support of his contentions, learned counsel for the petitioner/Defendant No.1 relied on the judgments of the Hon'ble Supreme Court in G.P. Srivastava vs. R.K. Raizada and others , (2000) 3 Supreme Court Cases 54 and High Court of Madras in Pilla Reddy vs. Thimmaraya Reddy , 1997 (1) MadLJ 37 . On the strength of the principle laid down in the above judgments, learned counsel for the petitioner/Defendant No.1 requested to set-aside the order passed by the Junior Civil Judge-cum-Judicial Magistrate of First Class, Kamalapuram in I.A.No.514 of 2024 in O.S.No.23 of 2020 dated 23.08.2024. 8. No counter affidavit is filed by the respondents 9. It is an undisputed fact that the suit was posted to 06.12.2021 for appearance and for filing written statement of petitioner/Defendant No.1. Due to his non-appearance, petitioner/Defendant No.1 was set exparte. 8. No counter affidavit is filed by the respondents 9. It is an undisputed fact that the suit was posted to 06.12.2021 for appearance and for filing written statement of petitioner/Defendant No.1. Due to his non-appearance, petitioner/Defendant No.1 was set exparte. But, petitioner/Defendant No.1 filed I.A.No.514 of 2024 under Order IX Rule 7 C.P.C to set-aside the exparte order on 22.04.2024 i.e almost after lapse of approximately 2 ½ years from the date of order passed by the Court below. The only ground mentioned by the petitioner/Defendant No.1 in the entire affidavit, more particularly in paragraph 2 of the affidavit for not attending the Court on the date of appearance is that, he was suffering from jaundice and taking country made medicines. The reason assigned by the petitioner/Defendant No.1 is highly unbelievable and appears to be out of indigenous intelligence of the petitioner, for the reason that the appearance was ordered on 06.12.2021, whereas, affidavit was filed on 22.04.2024. Thus, there was a gap of 2 ½ years from the date of ordering appearance. Hence, the reason assigned by the petitioner/Defendant No.1 is not ordinarily believable and on that ground, the exparte order cannot be set-aside. 10. The exparte decree passed against the petitioner/Defendant No.1 can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any “sufficient cause” from appearing when the suit was called on for hearing. Unless “sufficient cause” is shown for non- appearance of the petitioner/Defendant No.1 in the case on the date of hearing, the Court has no power to set aside an ex parte decree. If, „sufficient cause' is shown, an exparte decree can be set-aside. „Sufficient cause' varies from excuse and there is no straight jacket formula/form to accept a particular cause as sufficient cause or not to accept. In the present case, the reason assigned in the affidavit is that he fell sick due to jaundice and has taken country made medicine. Moreover, the petitioner/Defendant No.1 did not file any medical certificate along with the petition and not mentioned the name of the doctor, name of place of hospital for treatment and other essential particulars of alleged counting made and not filed any piece of payment bills/receipts for treatment, but simply referred in the affidavit that he fell sick due to jaundice. Moreover, the petitioner/Defendant No.1 did not file any medical certificate along with the petition and not mentioned the name of the doctor, name of place of hospital for treatment and other essential particulars of alleged counting made and not filed any piece of payment bills/receipts for treatment, but simply referred in the affidavit that he fell sick due to jaundice. I.A.No.514 of 2024 was filed to set- aside the exparte order 2 ½ years and did not explain the long delay in the manner day-to-day and everyday in filing the petition. The reason assigned by the petitioner/Defendant No.1 to set-aside such an order is that he had fell sick due to jaundice it is not a sufficient cause, since it is not supported by any documentary evidence. In such a case, it is difficult to hold that the cause shown by the petitioner/Defendant No.1 is sufficient cause, to set-aside such an order. Therefore, such cause can never be construed as „sufficient cause', since it was not beyond control and nothing prevented the petitioner/Defendant No.1 to file his counter affidavit, soon after recovery from illness. 11. The Supreme Court in Lanka Venkateswarlu (D) by L.Rs. v State of A.P. and Ors. , held as follows: “We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as “liberal approach”, justice oriented approach”, “substantial justice” cannot be employed to jettison the substantial law of limitation, especially in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. Whilst considering applications for condonation of delay under Section 5 of the Limitation act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers.” 12. In view of the law declared by the Apex Court, the Courts cannot jettison substantive law of limitation on the concept of substantial justice or complete justice and set-aside the order accepting any cause shown by the petitioner/Defendant No.1 as „sufficient cause'. If such cause is accepted, it amounts to encouraging the party who is dormant and doing injustice to the person who is diligently prosecuting the proceedings. 13. Order IX Rule 7 C.P.C pertains to the consequences of the non-appearance of the defendant. If the defendant fails to appear on the day fixed for hearing, the Court may proceed with the case and pass a judgment based on the evidence presented by the plaintiff. The underlying objective of Order 9 Rule 7 is to prevent unnecessary delays in the judicial process and ensure that defendants comply with court summons. By allowing the court to proceed in the defendant's absence, the rule aims to maintain the expeditiousness of proceeding while protecting the plaintiff's right to a fair trail. If the defendant does not appear, the court may proceed with the case and render a judgment based on the evidence presented by the plaintiff. The court emphasized the importance of adherence to procedural requirements while balancing the principles of natural justice. 14. Whereas the other contention of the learned counsel for the petitioner is that, Order IX Rule 7 C.P.C does not suggest any limitation is not valid and contrary to the object and meaning of the said provision. For more understanding, the same is extracted hereunder: 7. 14. Whereas the other contention of the learned counsel for the petitioner is that, Order IX Rule 7 C.P.C does not suggest any limitation is not valid and contrary to the object and meaning of the said provision. For more understanding, the same is extracted hereunder: 7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.— Where the Court has adjourned the hearing of the suit, ex parte, and the defendant, at or before such hearing appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. 15. On bare reading of the provision, it is clear and categorical that any set-aside plea should be brouhg tin before the Court very next date of hearing of the matter. That mercy even though there is no specific days or period was suggested, the object and substance if any, or plea should be brought in at the next hearing of the matter. Therefore, the provision clearly and expressly indicated particular limitation. Hence, the contention of the learned counsel for the petitioner is liable to be rejected. 16. Learned counsel for the petitioner relied upon judgment of Hon'ble Supreme Court in G.P. Srivastava vs. R.K. Raizada and others and High Court of Madras in Pilla Reddy vs. Thimmaraya Reddy (referred supra). In G.P. Srivastava vs. R.K. Raizada and others case, case was called on 10.03.1983 for hearing by the Court for appearance of the appellant. As none appeared, the suit was decreed ex parte on the basis of evidence produced in the case. The cause shown by the appellant for non-appearance was two fold: (i) he was post as an Assistant Engineer in the Irrigation Department and on account of the construction of the bridges over the casual drains he had to remain at the site in the interest of public, as such, he became indisposed till the evening of 08.03.1983 at the site which was about 85 kms away from Lucknow and he could not move or return back to Lucknow till 11.03.1983, which prevented him from appearing in the Trial Court on 10.03.1983. (ii). (ii). Unfortunately, the young nephew of the counsel for the appellant met with an accident on 10.03.1983 and expired which prevented the counsel to appear in the Court on that date. Since the medical certificate was obtained from a private doctor and not from a government doctor, the same was disputed. The Hon'ble Apex Court observed that, the appellant himself was not at the station on account of his employment and nephew of the counsel of the appellant had died in the road accident on the date of hearing. Further, it was observed that, obtaining a certificate from a private doctor could not be a basis for rejecting his claim and allowed the appeal on the ground that the appellant had put a reasonable defence. But, in the instant case, except mentioning that the petitioner had suffered from jaundice and administered country medicines, no piece of evidence is putforth to substantiate that the petitioner fell sick, so also, no reason was mentioned for the absence of the counsel for the petitioner before the Trial Court. No sufficient cause is shown by the petitioner for his non-appearance before the court below on the date of hearing. Therefore, the judgment relied on by the learned counsel for the petitioner is not at all applicable to the present facts on hand. 17. In Pilla Reddy vs. Thimmaraya Reddy (referred supra), though the suit was numbered as O.S.No.13 of 1996, the said suit was instituted in the year 1986 as O.S.No.200 of 1986. Since, no progress has been made after ten years of institution of the suit, Defendant Nos.4 to 6 who were set exparte on 12.03.1987, were permitted to file their pleadings by the High Court. Though there were some latches on the part of the petitioners, the learned single Judge took liberal approach, permitting them to file written statement by imposing costs. The said judgment has only persuasive value, but not binding upon this Court. 18. On an overall consideration of the material available on record, the word „sufficient cause' assumed importance to pass any order setting aside the exparte decree or order. But the cause shown by the petitioner/Defendant No.1 is not sufficient cause, as discussed above and by applying the principle laid down by the Apex Court in Lanka Venkateswarlu’s case (referred supra). 18. On an overall consideration of the material available on record, the word „sufficient cause' assumed importance to pass any order setting aside the exparte decree or order. But the cause shown by the petitioner/Defendant No.1 is not sufficient cause, as discussed above and by applying the principle laid down by the Apex Court in Lanka Venkateswarlu’s case (referred supra). Unless the petitioner/Defendant No.1 assigns good cause for his non- appearance, he is not entitled to have the exparte order being set- aside. The Court below rightly dismissed the application observing that there are not sufficient reasons for non-appearance of petitioner/Defendant No.1 and his counsel and non-filing of documentary evidence to believe the cause shown by the petitioner/Defendant No.1. Therefore, this Court is inclined to hold that neither sufficient cause nor reasonable explanation was offered for his absence by the petitioner. Hence, the petitioner is not entitled to any relief as claimed. 19. In the result, the civil revision petition is dismissed. No costs. 20. Consequently, miscellaneous applications pending if any, shall stand closed. No costs.