Paidi Soujanyamma vs Dubagunta Venkateswara Rao
2021 Latest Caselaw 4900 AP

               THE HONOURABLE SRI JUSTICE D.RAMESH

     CIVIL REVISION PETITION Nos.3636 of 2019 & 3765 of 2019

COMMON ORDER:

C.R.P.No.3636 of 2019:

       The Revision Petition is preferred by the petitioner/respondent

aggrieved by the order dated 16.8.2019 made in I.A.No.141 of 2018 in

O.S.No.51 of 2018 on the file of the Principal Senior Civil Judge, Nellore.

C.R.P.No.3765 of 2019:

The Revision Petition is preferred by the petitioner/respondent

aggrieved by the order dated 08.11.2017 made in I.A.No.953 of 2015 in

O.S.No.51 of 2018 on the file of the Principal Senior Civil Judge, Nellore.

3. In both the revision petitions, the petitioners are one and the same

and the suit is one and the same and hence these two revision petitions

are being disposed of with a common order.

4. Heard both sides.

5. The petitioner herein is the plaintiff in the suit. The

defendants/respondents filed I.A.No.953/2015 in O.S.No.51/2008 on the

file of the Principal Senior Civil Judge, Nellore under section 5 of

Limitation Act to condone the delay of 78 days in filing petition under

Order 9 Rule 9 CPC. The said I.A. was considered and allowed by orders

dated 08.11.2017 with the following order:

"In the result, the petition shall be allowed on payment of costs of Rs.1,000/- payable by the petitioner/D-1 to the other side on or before 29.11.2017, failing which, the petition shall stand dismissed."

6. Consequently, the defendant/respondent has filed I.A.No.141/2018

under Order 9 Rule 13 r/w section 151 CPC to set aside the exparte

decree dated 12.4.2013. In view of the disposal of the earlier I.A. i.e.

I.A.No.953/2015, the present I.A. is also allowed with the following

directions:

"In the result, the petition is allowed on condition of payment of Rs.5,000/- (Rupees five thousand only) towards suit costs to the plaintiff on or before 04.9.2019 and the petitioner/defendant shall file all chief examination affidavits of all his witnesses and DW1 shall present before the court on 04.9.2019 for adducign evidence, in default petition stands dismissed."

7. Questioning the said orders, the present revisions are filed. The

contention of the petitioner/plaintiff is that the Court below has wrongly

framed issues for consideration while allowing the said I.A's. Though the

petitioner has filed an application under section 5 of Limitation Act for

condonation of delay of 78 days in filing petition under Order 9 Rule 9

CPC and the Court below has not considered properly. Though the suit

was filed in the year 2008 and the defendants filed their written

statement and plaintiff witnesses were cross-examined by the defendants

counsel and also I.A.No.11/2013 to reopen the evidence of DW1 was

allowed on 19.02.2013 and that order was not complied by defendant

no.1. Hence the Court below heard the arguments on both sides and

passed the decree on merits appreciating the evidence filed by both the

parties and the suit was decreed on merits. Hence the decree passed by

the Court below on 26.7.2013 is not an exparte decree. Hence the

petition under Order 9 Rule 9 is not maintainable. But without

considering the same, the Court below has allowed the application filed

by the respondent/defendant treating the order dated 26.7.2013 as an

exparte decree and allowed the petition is contrary to the ratio decided

by the Hon'ble Apex Court in various judgments.

8. Though notice was issued on the respondent/defendant no.1, he

has not chosen to appear.

9. Learned Senior Counsel Smt. K.Sesha Rajyam, appearing on behalf

of the petitioner has relied on the judgment of the Apex Court in

G.Ratna Raj (dead) by legal representatives vs. Sri

Muthukumarasamy Permanent Fund Limited and another1 . In the

said judgmnet, the Apex Court has referred to Order 17 Rule 2 and 3 and

Order 9 Rule 6(1)(a) of CPC. The relevant paragraph of the said

judgment is extracted below.

The scope of Order 17 Rule 2 and Order 17 Rule 3 of the Code came up for consideration before this Court in the case of B. Janakiramaiah Chetty vs. A.K. Parthasarthi & Ors., (2003) 5 SCC 641 wherein Justice Arijit Pasayat speaking for the Bench held in paras 7 to 10 as under:

"7. In order to determine whether the remedy under Order 9 is lost or not what is necessary to be seen is whether in the first instance the Court had resorted to the Explanation of Rule 2.

8. The Explanation permits the court in its discretion to proceed with a case where substantial portion of 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. As the provision itself shows, discretionary power given to the court is to be exercised in a given circumstance. For application of the provision, the court has to satisfy itself that:

(a) substantial portion of the evidence of any party has been already recorded; (b) such party has failed to appear on any day; and (c) the day is one to which the hearing of the suit is adjourned. Rule 2 permits the court to adopt any of the modes provided in Order 9 or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The Explanation is in the nature of an exception to the general power given under the rule, conferring discretion on the court to act under the specified circumstance i.e. where evidence or a substantial portion of evidence of any party has been already recorded and such party fails to appear on the date to which hearing of the suit has been adjourned. If such is the factual situation, the court may in its discretion deem as if such party was present. Under Order 9 Rule 3 the court may make an order directing that the suit be dismissed when neither party appears when the suit is called on for hearing. There are other provisions for dismissal of the suit contained in Rules 2, 6 and 8. We are primarily concerned with a situation covered by Rule 6. The crucial words in the Explanation are "proceed with the case". Therefore, on the facts it has to be seen in each case as to whether the Explanation was applied by the court or not.

9. In Rule 2, the expression used is "make such order as it thinks fit", as an alternative to adopting one of the modes directed in that behalf by Order 9. Under Order 17 Rule 3(b), the only course open to the court is to proceed under Rule 2, when a party is absent. Explanation thereto gives a discretion to the court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the court has no option but to proceed as provided in Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the court to decide the suit forthwith. The basic

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distinction between the two rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present.

10. The crucial expression in the Explanation is "where the evidence or a substantial portion of the evidence of a party". There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The court while acting under the Explanation may proceed with the case if that prima facie is the position. The court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or deferring the decision."

Now when we examine the facts of the case at hand keeping in view the law laid down in the case of B Janakiramaiah Chetty (supra), we find that the plaintiff's evidence was recorded and his case was also closed. It is not in dispute that the defendants were placed ex parte on the date when the case was fixed for recording defendants' evidence but the same was not recorded due to the defendants' absence on the said date. In other words, it was a case where the defendants did not lead any evidence.

In such a situation arising in the case, in our view, the case at hand would not fall under Explanation to Order 17 Rule 2 of the Code because in order to attract the Explanation, "such party" which has led evidence or has led substantial part of the evidence, if fails to appear on any day to which the hearing of the case is adjourned, the Court may treat "such party" as "present" on that day and is accordingly empowered to proceed in the suit.

As mentioned above, the Trial Court did proceed to hear the suit ex parte by taking recourse to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the Trial Court passed the preliminary decree. Such decree, in our opinion, was an "ex parte decree" within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants.

In view of the foregoing discussion, we are of the view that the Division Bench was justified in allowing the applications filed by defendant No.1 under Order 9 Rule 13 of the Code and, in consequence, was justified in setting aside the preliminary decree dated 25.02.2003 passed in O.S. No.131/1999 treating the said decree as "ex parte decree".

10. Learned Senior Counsel by relying on the above said judgment has

vehemently argued that in the above said judgment, the Court has

intrepreted Order 17 Rule 2 and 3 CPC and held that whether the

defendants are exparte then only application under Order 9 Rule 13 CPC

is applicable.

11. But in the instant case, the defendants failed to appear despite

granting opportunity and the Court below has proceeded the suit on

merits and the counsel for the defendants was present. Hence the

decree passed by the Court below on 26.7.2013 is not an exparate

decree and it cannot be construed as an exparte decree. Hence

requested to set aside the order declaring as not maintainable.

12. On perusal of the order of the Apex Court, the facts were also

identical to this case. There the Court at first instance has preliminarily

decreed the suit without completion of evidence of the defendants.

Questioning the said orders, the defendants have filed an application

under Order 9 Rule 13 CPC. The Division bench has allowed the said

application filed by the defendants under Order 9 Rule 13 CPC with

certain conditions. Assailing the said orders, the plaintiffs filed the civil

appeal before the Apex Court. Even in the said matter, after completion

of the cross-examination of the plaintiffs, the matter is posted for the

evidence of defendants and defendants did not appear in the suit.

Therefore, the Court proceeded exparte agaisnt them. In the said

circumstances, the Court while interpreting Order 17 Rule 3 CPC, the

Apex Court has upheld the Division Bench order in allowing the

application filed by the defendants under Order 9 Rule 13 CPC.

13. Even in the instant case, the evidence of plaintiffs was completed

and the matter is posted for the defendants evidence. When the

defendants have not chosen to appear, the same was closed. Again he

filed an application in I.A.No.119/2013 to reopen the evidence of

defendant no.1 and the matter is posted to 19.02.2013 for filing of chief

affidavit and on the said date, the defendants failed to comply the orders.

Hence the Court below has proceeded with the matter and decreed on

merits. Hence the facts of this case are identical to the facts in the case

of the Hon'ble Apex Court as recited above. In the said circumstances,

the Apex Court has upheld the orders of the Division bench which are

passed on the application filed by the defendants under Order 9 Rule 13

CPC. With the same analogy, here also the Court below has allowed the

applications filed by the defendants with certain conditions.

14. In view of the above discussion, I see no grounds to interfere and

accordingly, both the Revision Petitions are dismissed. There shall be no

order as to costs.

As a sequel thereto, the miscellaneous petitions, if any, pending in

both the Revision Petitions shall stand closed.

________________ JUSTICE D. RAMESH

Date: 30.11.2021 RD

THE HONOURABLE SRI JUSTICE D.RAMESH

CIVIL REVISION PETITION Nos.3636 of 2019 & 3765 of 2019

Dated 30.11.2021

RD