Beedelli Sujatha vs Gunisetty Peddintlustyling ...
2023 Latest Caselaw 2021 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

      CIVIL MISCELLANEOUS APPEAL No.439 of 2022

JUDGMENT:

Defendants in a suit failed to convince the trial Court

about their cause of absence leading to an ex-parte decree

suffered an adverse order in I.A.No.180 of 2022 in O.S.No.31 of

2014 in the Court of learned X Additional District Judge,

Narsapur, have come to this Court under Order XLIII Rule 1(d)

C.P.C. assailing the correctness of the order.

2. The respondents herein in this appeal are the plaintiffs

before the trial Court.

3. Heard arguments of learned counsel on both sides.

4. Perused the record.

5. The following points emerged for consideration:

"1) Whether these appellants disclosed "sufficient cause" that prevented them from attending the hearing before the Trial Court?

2) Whether the impugned Order suffers from errors of facts of law?"

Points:

6. O.S.No.31 of 2014 was a suit filed by three plaintiffs as

against four defendants before the learned X Additional District

Judge, Narsapur. In the said suit, the plaintiffs prayed for

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declaration that plaintiff Nos.2 and 3 are the owners of plaint

schedule property and they also sought for recovery of

possession of northern portion of the 1st floor of the building

mentioned in the schedule and they further claimed damages

and also sought for permanent injunction restraining the

defendants from interfering with possession and enjoyment of

the plaintiffs over the suit schedule property. Defendants

received summons, engaged their counsel and made their

appearance in this suit. For quite some time, the suit was

adjourned for receiving the written statement from the

defendants but finally as they failed to file the written

statement, the learned trial Court set them ex-parte on

"23.04.2015".

7. Thereafter it was on "21.08.2017", the defendants moved

an application under Order IX Rule 7 C.P.C. requesting learned

trial Court to set aside the ex-parte order and receive their

written statement. On certain office objections, the said

application as well as the written statement were returned with

the direction to represent after rectifying the objections.

Subsequently, the defendants represented the said application

along with written statement but they were once again returned

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on "04.01.2018" questioning the correctness of the application.

It is to be stated that thereafter no such application was filed by

the defendants and they did not choose to put in a written

statement. Subsequent thereto the suit preceded ex-parte,

learned trial Court went on to adjourn the hearing from one

date to other date and recorded the evidence of PWs.1 to 4 and

the plaintiffs got exhibited Exs.A1 to A19. During all those dates

of hearing, the defendants or their counsel did not participate.

After hearing the arguments of learned counsel for plaintiffs and

on considering the oral and documentary evidence, the learned

trial Court decreed the suit in favour of the plaintiffs and the

judgment and decree were passed on 27.03.2019. Thereafter, as

defendants failed to comply with decree mentioned directions,

the plaintiffs filed E.P.No.490 of 2019 before the executing

Court and in execution the decree holders sought for delivery of

property. When the Court officers went to execute the warrant,

the defendants/J.drs refused to deliver the property.

Defendants claimed that it was only when the Court officer had

come to the property, they came to know that an ex-parte

judgment was delivered against them and therefore seeking to

set aside that ex-parte decree, they filed I.A.No.180 of 2022

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under Order IX Rule 13 C.P.C before the trial Court. They

moved EA.No.585 of 2019 before the executing Court seeking

stay of the execution proceedings and after due hearing the

learned executing Court stayed the proceedings. Subsequently

in the application for setting aside ex-parte decree in I.A.No.180

of 2022, it received the counters from the plaintiffs and after

due hearing, by the impugned order, it dismissed the petition. It

is against that order the present Civil Miscellaneous Appeal

came to be filed.

8. Before adverting to the analysis of facts on record, it is

relevant to notice "Order IX Rule 13 C.P.C."

"13. Setting aside decree ex-parte against defendant:- In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an Order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an Order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendant also:

Provided further that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of

Dr. VRKS, J C.M.A.No.439 of 2022

hearing and had sufficient time to appear and answer the plaintiff's claim Explanation: Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule of setting aside the ex-parte decree.

9. One could see that an ex-parte decree could be set

aside if

1.The defendants were not served with summons.

2.Summons were served but, on the day when the

suit was called on for hearing they could not appear

before the Court on the date of hearing because of

facts that prevented them from attending the Court.

If those facts furnish proper reason to the Court,

then it is called sufficient cause.

10. It is on those two grounds an ex-parte decree could be set

aside. In the case at hand even by their own showing the

defendants/these appellants were duly served with summons

and they made their appearance in the Court. Therefore, that

part of the provision has no application to this case. The case of

these appellants was argued on the ground that they had

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sufficient cause for their failure to appear on the adjourned date

of hearing.

11. It is also relevant to notice the ratio laid down by the

Hon'ble Supreme Court of India in G.P.Srivastava Vs. R.K.

Raizada1

"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. In a case

(2000) 3 SCC 54

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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. Explaining about "sufficient cause", the Hon'ble

Supreme Court of India in Parimal Vs. Veena2 held that

"sufficient cause" means that party had not acted in a

negligent manner or there was a want of bona fide on its part.

In view of the facts and circumstance of the case, the party

cannot be alleged to have been not acting diligently or

"remaining inactive".

13. Thus, it is in the above referred circumstances, a second

opportunity has been given to the litigant to permit it to fight

out the litigation on merits. In the case at hand defendants

suffered the ex-parte decree and they sought it to be set aside.

14. The 1st appellant/1st petitioner/1st defendant swore an

affidavit for herself and on behalf of the rest of the

defendants/appellants. This affidavit mentioned the filing of the

suit and their appearance before the Court and their failure to

(2011) 3 SCC 545

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file the written statement and thereafter their efforts to file

written statement and applications being returned etc. facts.

Then it is stated that till the day Court officers came to effect

delivery of property in the execution proceedings, these

appellants were under the impression that the suit was still

pending. These are the crucial facts that govern this present

case. The affidavit further narrates that there are no willful

laches on their part and since they were thinking that the suit

was still pending, they did not meet their advocate. Then it is

only after Court officer came, they met their advocate and then

they have come up with an application to set aside ex-parte

decree. It is further stated that the ex-parte decree was made

on 27.03.2019 and the application under Order IX Rule 13

C.P.C. was supposed to be filed within 30 days which means on

or before 26.04.2019 but they could not do it and in the

process, there was 206 days delay and the cause for

condonation of delay and the cause of setting aside ex-parte are

one and the same and therefore they were moving single

application to condone the delay and to set aside ex-parte

decree.

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15. As against these, plaintiffs filed a counter questioning the

correctness of the averments made in the application and the

affidavit and stated that these defendants had full knowledge of

the date of decree and about factum of passing of ex-parte

decree and they did not furnish any valid reasons for huge delay

that occasioned in moving the application and that this

application is vexatious and not maintainable.

16. Learned trial Court elaborately considered these

submissions and copiously recorded the precedents cited before

it and held that these defendants/appellants had full knowledge

of litigation about the pendency of the suit, about the passing of

the ex-parte decree and they kept quite all the while and they

failed to show any sufficient cause to set aside the ex-parte

decree. Finally, it dismissed that application.

17. In this Civil Miscellaneous Appeal, learned counsel for

appellants urged that valuable rights over immovable property

are in question and these appellants deserve an opportunity to

contest the suit on merits and their pursuit of law is bona fide

as could be gathered from their earlier efforts in presenting the

written statement through an application under Order IX Rule 7

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C.P.C. and the learned trial Court instead of being generous in

these type of cases, erroneously dismissed the application.

18. As against this, learned counsel for respondents/plaintiffs

submitted that it was a suit that commenced in the year 2014

and even after 9 years there is no quietus. It is further argued

that appellants absolutely failed to show sufficient cause for

absence at the dates of hearing and therefore the order of the

trial Court is right on facts and law and does not require any

interference.

19. Having considered these rival submissions and having

considered the material on record, this Court had to state the

following:

The application filed by these appellants before the

learned trial Court in seeking to set aside the ex-parte decree

fails to furnish all data that is relevant to consider such an

application. The suit commenced in the year 2014 and they

made their appearance and thereafter as they failed to file the

written statement, the trial Court decided to proceed ex-parte

and set the defendants/appellants ex-parte on 23.04.2015.

Thus, it was from that day ex-parte proceedings commenced.

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The suit was not disposed of on that day or on the next date. It

was subsequently on several occasions, the suit was called on

for hearing and during all those days 4 witnesses were

examined and several documents were collected during trial.

The application to set aside ex-parte decree does not mention

what was the next date of hearing subsequent to the date of

their setting ex-parte and it did not furnish any information as

to what prevented them from attending the Court on any of

those subsequent days of hearing.

20. On the other hand, their affidavit indicates that during

the year 2017 and 2018, they put some effort in having the

earlier ex-parte order set aside and file their written statement.

From 04.01.2018, on which day their application to set aside ex-

parte order and receive the written statement was returned, the

petition of the appellants fail to mention any fact disclosing the

efforts of these appellants in attending the Court or the efforts of

their counsel in attending the Court. On the other hand, they

say that they have always been under the impression that the

suit has been pending and they realized that the judgment was

rendered ex-parte only when the execution proceedings were

initiated. These averments in the affidavit make it crystal clear

Dr. VRKS, J C.M.A.No.439 of 2022

that these appellants as defendants though were eligible to

appear for contesting the matter from 23.04.2015 onwards till

the decree was passed on 27.03.2019, they did not choose to

participate in the legal process. No causes are furnished for

their failure to attend on various days of hearing. Order IX Rule

13 C.P.C. mandates that these defendants/appellants shall

furnish a cause which prevented them from participating in the

trial process. About that period the application is totally silent.

Therefore, there was no cause shown to set aside the ex-parte

decree in terms of Order IX Rule 13 C.P.C.

21. Added to the above they had come to Court with 206 days

delay. The affidavit is silent as to when the Court officer met

them and thereby notifying to them about the execution of the

decree for delivering of possession. Thus, on relevant facts the

affidavit furnishes no clue. The affidavit filed in support of the

petition indicates that these appellants have not chosen to meet

their lawyer since the suit was thought to be pending. Thus,

they voluntarily and consciously "remained inactive". Being

"remaining inactive" is sufficient cause to dismiss the

application as per the ratio of the Hon'ble Supreme Court of

India referred above as per Parimal's case (supra 2). As could

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be seen from the impugned order of the learned trial Court,

these appellants with full knowledge allowed the time to elapse

and they did not furnish any cause for their delayed approach

to the Court. That observation is correct on facts.

22. In the above referred circumstances, it is to record that

these appellants had completely failed to furnish any fact that

prevented them from appearing before the trial Court on the

appointed dates of hearing and they failed to furnish sufficient

cause for their absence and they also failed to show any

sufficient cause for 206 days delay in moving the application

before the trial Court. The order of the trial Court is in

accordance with law and facts available on record. Therefore, no

interference is called for. Both points are answered against the

appellants.

23. In the result, this Civil Miscellaneous Appeal is dismissed.

There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 18.04.2023 DVS

Dr. VRKS, J C.M.A.No.439 of 2022

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CIVIL MISCELLANEOUS APPEAL No. 439of 2022

Date: 18.04.2023

DVS