Andhra Pradesh High Court - Amravati
Director Of Health Family Welfare vs Matta Venkateswara Rao 4 Others on 13 February, 2023
1
HON'BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA
C.M.A.No.625 of 2014
JUDGMENT:-
1. Feeling aggrieved by the impugned Order dated
23.04.2014 in I.A.No.88 of 2013 in MVOP No.343 of 2006
on the file of the I Additional District Judge, Krishna at
Machilipatnam, the appellant, who was the respondent
No.2, preferred the present Appeal.
2. The appellant herein was the respondent No.2,
respondent No.1 herein was the driver of the vehicle and
the respondent Nos. 2 to 5 herein were the claimants,
who are the children of the deceased in the main petition
before the trial Court.
3. The respondent Nos. 2 to 5 herein filed MVOP No.343
of 2006 under Section 166 of M.V. Act claiming
compensation of Rs.3,00,000/- due to the untimely death
of their mother Smt. Kasimala Sowdamani, stating that
due to rash and negligent driving of the respondent No.1
herein their mother died. The offending vehicle, which
was driven by the respondent No.1 bearing Registration
No. AP 09 AQ 5140 belongs to the Health Department.
4. The learned Government Pleader after receiving
Notice made his appearance on behalf of Respondent
No.2 on 03.11.2006, but he did not choose to file
Counter and therefore, the Respondent No.2 was set ex
parte. Thereafter, the driver, who was the respondent
No.1 also remained ex parte. The trial Court passed an
ex parte decree against the Appellant herein/respondent
No.2 therein. After receiving Notice in the Execution
Petition, the Appellant came to know about the ex parte
decree. Then they filed a Petition under Order 9 Rule 13
CPC to set aside the ex parte decree passed against the
Appellant stating that, there is no willful negligence on
their part in not filing the Counter, and that they have
strong grounds to defend the case. Along with the delay
condonation petition to condone the delay of 905 days,
they filed the Petition under Order 9 Rule 13 CPC to set
aside the ex parte decree.
5. Respondent Nos. 2 to 5 filed their Counter refuting
the contents of the affidavit filed along with petition
stating that there is negligence on the part of the
Appellant herein to pursue the matter. In E.P.No.15 of
2009, as the appellant did not deposit the decree
amount, Tata Sumo Vehicle of the appellant got attached
and thereafter, the Appellant offered guarantee and took
back the vehicle. Therefore, there are no reasons to set
aside the ex parte decree.
6. After hearing both the counsel and on perusal of the
material on record, the learned trial Judge dismissed the
petition holding that the Court cannot help the parties,
who are sleeping over their rights, and the present
petition is filed at a belated stage when the matter is at
Execution and therefore, it is impermissible.
7. Heard both the counsel.
8. Now the point that would emerge for determination
is whether the impugned Order is on correct lines or any
interference is warranted in this appeal?
9. Point: Learned counsel for the Appellant would
submit that the Government Pleader, who appeared
representing the Appellant, left the office on expiry of his
term. Thereafter, new Government Pleader after
assuming the charge found the record, and the record
was misplaced in the office. After receipt of the notice in
the Execution Petition, they could trace out the record
and immediately filed the said Petition. State
Government was not properly impleaded as party in the
OP. The claimants, who are respondent Nos. 2 to 5
including married daughters all are major children. The
multiplier to be adopted for calculating the compensation
for the deceased is wrong. The impugned Order is not
sustainable under law.
10. Per contra, the learned counsel for the respondent
Nos. 2 to 5 would submit that there are no grounds to
interfere into the impugned Order. The appellant is very
negligent in pursuing the matter before the trial Court.
Accident is of the year 2006. When the matter is in
execution, the Appellant wanted to reopen the issue
only to drag the matter.
11. As seen from the record, the matter has been
stayed without depositing the compensation.
12. At this juncture, it is beneficial to refer the
Judgment of the Hon'ble Apex Court in G.P.
Srivastava v Raizada and others1, wherein it is held
that 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
(2000) 3 SCC 54
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 inputable
to the erring party.
13. As seen from the record, the learned Government
Pleader having made appearance before the concerned
Court failed to file any counter opposing the claim of
the claimants, who are bereaved family members of the
deceased. Thereafter, on 18.01.2008 the ex parte
decree was passed. The record further shows though
the appellant assured to deposit some compensation
amount, nothing has been deposited. By giving surety,
the vehicle which was attached in the execution petition
was taken away. As rightly observed by the learned
Judge, there are no grounds to interfere in the ex parte
decree passed. It is not the case that summons were
not duly served on the respondents or they were
prevented by any sufficient cause for their appearance
before the concerned Court. The cause which was
shown by the Appellant is not suffice to condone their
absence for such a long period. No plausible
explanation is coming forth from the appellant to set
aside the ex parte decree. Therefore, the appeal
deserves dismissal.
14. Accordingly, the Appeal is dismissed. In the
circumstances of the case, both parties shall bear their
own costs.
Miscellaneous petitions pending, if any, in this case
shall stand closed.
____________________________
VENKATA JYOTHIRMAI PRATAPA, J
Date : 13.02.2023
eha
HON'BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA
C.M.A.No.625 of 2014
Date : 13.02.2023
eha
