- JUDGMENT : CHALLA GUNARANJAN, J. 1. Present appeal is preferred assailing order dated 09.01.2024 passed in I.A. No.1666 of 2021 in O.S. No.36 of 2016 on the file of Principal District Judge, Kadapa, rejecting application filed under Order 9 Rule 13 of CPC for setting aside ex parte decree dated 19.03.2020. 2. For the sake of convenience, parties herein will be referred to as they were arrayed before the Tribunal. 3...... (a) Initially, O.S. No.36 of 2016 was filed by plaintiff against four defendants for recovery of amount of Rs. 18,17,640/- along with future interest @ 36% per annum. The suit was based on plea that defendants 1 to 4 borrowed sum of Rs. 5,10,000/- from plaintiff on 12.02.2013 for their family necessities by executing registered conditional mortgage deed by Doc.No.6124 of 2013, which mortgaged an extent of Acres 0.30 cents in Survey No.98/2 of Ramarajupalle Village, Kadapa Municipal Corporation. Aforesaid amount was stated to be borrowed for an interest of 36% per annum, repayable within two years. - (b) Besides, defendants 1 to 3 also stated to have borrowed further sum of Rs. 9,90,000/- on 31.12.2013 for family needs under unregistered debt deed, in total, Rs. 15,00,000/- was borrowed. However, the same was not repaid and postponed on one pretext or another. Further defendants 1 & 4 filed O.S. No.23/2016 on the file of Principal Senior Civil Judge, Kadapa, against plaintiff and defendants 2 and 3, for a decree directing plaintiff herein, defendant therein to execute and register regular sale deed in respect of the property which was under mortgage after receiving amount of Rs. 5,10,000/- together with interest of 24% per annum and further for permanent injunction. As two of the defendants resorted to aforesaid proceedings and that they were not paying the entire amount as borrowed, after issuing notice, present suit came to be instituted. (c) The trial court has issued notice to defendants, after service of summons, defendants 1 and 4 entered appearance through counsel and defendants 2 and 3 through different counsel on 14.06.2016. Suit was adjourned for filing of written statement to 01.08.2016, further time was sought for, therefore, it was again adjourned to 15.09.2016. Yet again, it was adjourned to 29.09.2016 by imposing costs of Rs. 50/-. Suit was adjourned for filing of written statement to 01.08.2016, further time was sought for, therefore, it was again adjourned to 15.09.2016. Yet again, it was adjourned to 29.09.2016 by imposing costs of Rs. 50/-. Defendants 1 & 4 filed written statements, however, defendants 2 & 3 did not file and on request, it was adjourned again to 30.09.2016 on further costs of Rs. 100/-. Even then, since written statement was not filed and as counsel reported no instructions from his clients, defendants 2 & 3 were set ex parte. Later, the suit proceeded and defendants 1 & 4 contested the matter. Eventually, as contesting defendants took stand that Thumb Impressions on unregistered debt deed under which an amount of Rs. 9,90,000/- was stated to have been advanced were forged, the expert also opined that the thumb impressions did not tally with, plaintiff filed application under Order 23 Rule 1 of CPC to abandon claim against them, which was allowed. Consequently, suit was proceeded against defendants 2 & 3, who were earlier set ex parte and ultimately, ex parte decree came to be passed by order dated 19.03.2020. - (d) The defendants 2 & 3, thereafter, filed I.A. No.1666/2021 under Order 9 Rule 13 of CPC for setting aside of ex parte decree. The said application was opposed by filing counter. Ultimately, after hearing both parties, the trial court has dismissed the same by impugned order dated 09.01.2024. (e) Assailing the same, present appeal is filed. 4. Heard Sri A.Syam Sundar Reddy, learned counsel for appellant and Sri K.Venu Gopal Reddy, learned counsel for 1 st respondent. None appeared for respondents 2 & 3. 5. Learned counsel for appellants contended that the application filed under Order 9 Rule 13 ought not have been rejected for the reason that the 1 st respondent/plaintiff has clearly played fraud on the court by abandoning the claim qua defendants 1 & 4 as they demonstrated that thumb impressions on unregistered debt deed were clearly forged and fabricated and that since the said defendants were pursuing the suit on their behalf being mother and brother, therefore, the court should not have allowed to abandon the claim. He further contended that since mother and brother of appellants being defendants 1 & 4 were pursuing the litigation, even on their behalf as they were living separately, they were unaware and not in knowledge of being set ex parte and passing an ex parte decree. Having come to know of the same, immediately preferred present application, therefore, the said reason clearly constitutes valid explanation and there is sufficient cause shown for non-appearance on 30.09.2016 and thereafter, for setting aside the said ex parte decree. - 6. Learned counsel for 1 st respondent/plaintiff on the other hand opposing the contentions raised above, in support of the impugned order contended that since after service of summons and entering appearance, having sought for multiple adjournments for filing written statement, even after imposing of costs on couple of occasions, the appellants did not come up with any written statement, rightly the trail court set them ex parte and passed ex parte decree, therefore, the application filed for setting aside such ex parte decree has been rightly rejected with sufficient reasons. Therefore, does not call for any interference. 7. Perused the record and considered rival submissions. 8. It is not in dispute that after filing of suit, all four defendants received summons and entered appearance through counsels. Curiously, defendants 1 and 4 engaged one set of counsel and defendants 2 and 3 engaged another set of counsel. Initial appearance was made on 14.06.2016 and time was sought for filing written statement. Therefore, suit was adjourned to 01.08.2016. Further time was sought for, as such, suit came to be posted to 15.09.2016. Even then, written statement was not filed, so, on costs of Rs. 50/- suit was adjourned to 22.09.2016. Defendants 1 & 4 filed written statement, however, further time was sought for by defendants 2 and 3, so, on costs of Rs. 100/- once again time was extended to 30.09.2016. On said day, counsel for defendants 2 & 3 informed no instructions from parties, therefore, for failure to file written statement, they were set ex parte. - 9. As seen from ex parte decree and judgment dated 19.03.2020, it appears defendants 1 & 4 contested the suit denying the thumb impressions on Ex.A1, for which purpose, they even sought for expert opinion under Exs.X1 to X3, which suggested the thumb impressions were not identical and matching. - 9. As seen from ex parte decree and judgment dated 19.03.2020, it appears defendants 1 & 4 contested the suit denying the thumb impressions on Ex.A1, for which purpose, they even sought for expert opinion under Exs.X1 to X3, which suggested the thumb impressions were not identical and matching. Thereafter, application was filed by plaintiff for abandoning the claim insofar as those defendants were concerned, which eventually came to be allowed on 13.03.2020. From 2016 to 2020, the suit underwent numerous hearings. Later, suit was proceeded against the remaining two defendants who were set ex parte and ultimately, the same got decreed on 19.03.2020. 10. The above narrated sequence of events clearly go to show that after appellants came to be set ex parte on 30.09.2016, the suit was being pursued and heard from time to time till 2020. Almost for about three and half years, the proceedings went on. After suit was decreed ex parte, appellants have come up with I.A. to set aside the same. The only reason which is mentioned in the affidavit filed in support of the I.A. is that they were under impression that the suit was being pursued by defendants 1 & 4, who are none other than mother and brother. To see whether the said explanation to be bonafide, at the very first instance, having received summons, if really all family members were together and intended to pursue the suit commonly rather than engaging different counsels, they would definitely have gone by single counsel as the debt claimed to be common. Further, when defendants 1 & 4 have filed written statement specifically denying their thumb impressions on Exs.A1 and that they even got the documents referred for expert opinion to prove the same, other two defendants kept silent and even did not choose to file written statement after availing multiple opportunities. Ultimately, they were set ex parte on 30.09.2016. Thereafter, almost after several hearings and more than three and half years, the suit came to be decreed. - 11. Order 9 Rule 13 postulates that an ex parte decree passed against defendant can be set aside upon satisfaction of the court that either summon was not duly served upon the defendant or he was prevented by any sufficient cause from appearing when the suit was called on for hearing. - 11. Order 9 Rule 13 postulates that an ex parte decree passed against defendant can be set aside upon satisfaction of the court that either summon was not duly served upon the defendant or he was prevented by any sufficient cause from appearing when the suit was called on for hearing. So it is prerequisite that one who is seeking to set aside ex parte decree has to sufficiently demonstrate that he has shown sufficient cause for non-appearance on the date of hearing. Further, he should also demonstrate that there was no negligence or inaction on his part. The Hon’ble Apex Court in G.P. Srivastava v. R.K. Raizada and others, (2000) 3 SCC 54 explaining the purport of Order 9 Rule 13 of CPC observed as follows: - “7. Under Order 9 Rule 13 CPC an ex parte decree passed against a defendant 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 defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The “sufficient cause” for non- appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If “sufficient cause” is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. If “sufficient cause” is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.” - 12. Keeping in view the observations made above, it is to be seen whether appellants in the present case have demonstrated with sufficient cause for this Court to exercise the discretion of setting aside ex parte decree. 13. As observed above, appellants have chosen to engage different counsel than that of other co-defendants who were none other than mother and brother. The only explanation offered for showing sufficient cause is that they were under impression the suit was being pursued by other two co-defendants even for themselves. The said reason clearly does not appear to be bonafide. The trial court has, in detail, considered aforesaid explanation and has come to definitive conclusion that the twin requirements under Order 9 Rule 13 of CPC that non-service of summons and no knowledge of the date of hearing were not made out in the present case for seeking setting aside of ex parte decree. The trial court also recorded finding that the assertion of appellants that their mother and brother were pursuing suit even for themselves does not inspire their bonafides for the reason that they had engaged separate set of counsel, therefore, it has rightly rejected the application. The said findings do not suffer from any perversity calling for interference by this Court. - 14. Aforesaid findings recorded by trial court, in the opinion of this Court, are justified and do not warrant any interference. Accordingly, this appeal has no merit and stands dismissed. No costs. As a sequel, miscellaneous petitions, pending consideration, if any, in this case shall stand closed.