S Subrahmanyam Naidu vs V.Ramachandra Naidu
2023 Latest Caselaw 109 AP

                                         1


             HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
                               AND
              HON'BLE SRI JUSTICE T. RAJASEKHAR RAO

                              I.A.No.2 of 2022
                                      in
                          Appeal Suit No.783 of 2019


ORDER: (Per Hon'ble Sri Justice U. Durga Prasad Rao)

        The point for consideration is whether the chief affidavit filed by the

defendant during trial in O.S.No.182/2011 is inadmissible in evidence after ex

parte decree was set aside by the appellate Court with a direction to the trial

Court to conduct trial from the stage of cross-examination of DW1 and thereby,

whether the defendant shall be permitted to file his fresh chief affidavit?


2.      Shorn of unnecessary details, the relevant factual matrix of the case is

thus:


        (a) O.S.No.182/2011 is a money suit filed by the respondent / plaintiff

against the petitioner / defendant on the strength of the suit promissory note

dated 01.09.2008. The defendant filed written statement opposing the suit inter

alia contending that the suit pronote is a rank forgery. During trial, PWs 1 to 3

were examined on behalf of the plaintiff and suit pronote was marked as Ex.A1.

On behalf of the defendant, his chief affidavit was filed, but thereafter he failed

to turn up to the Court for cross-examination and so, the trial Court eschewed

his evidence from record. It appears, the defendant filed I.A.No.478/2017 under

Section 45 of the Indian Evidence Act to refer the suit pronote to the

Handwriting expert, but however, since he did not prosecute the said petition,

the same was dismissed for default. The defendant also filed I.A.No.535/2017

to record his evidence through an Advocate Commissioner, but the said petition

was also dismissed by the trial Court. Ultimately, the trial Court passed the

judgment on 18.09.2017 decreeing the suit as prayed for.

(b) Aggrieved, the defendant filed A.S.No.783/2019 which was opposed

by the respondent / plaintiff. After hearing both parties and relying upon the

judgment of the Hon'ble Supreme Court in Prakash Chander Manchanda v.

Janki Manchanda1, this Court passed the judgment on 12.07.2022 as follows:

"11. Thus the Apex Court held that since the defendant's evidence was not adduced, the decree passed was only an ex-parte decree. The above case squarely applies to the case on hand. So there is no demure that in the instant case also the decree and judgment are ex-parte though the trial Court rendered an elaborate judgment. In that view also we think an opportunity should be given to the defendant to contest the suit by setting aside the impugned judgment and decree. However, such an opportunity can be given to the petitioner only by imposing suitable terms. Admittedly, the petitioner has deposited 50% of the decretal amount and proportionate costs. Hence additional terms are required to be imposed to establish his bonafides.

12. Accordingly, this appeal is allowed and the judgment and decree in O.S No.182/2011 on the file of IV Additional District Judge, Tirupathi are set aside with a direction that both parties shall appear before the trial Court on 01.08.2022 and thereupon the trial Court shall fix the date for defendant's evidence and give him an opportunity to attend the Court for his cross- examination and for adducing further evidence including filing a fresh application for sending the suit pronote to a handwriting expert and trial Court

AIR 1987 SC 42 = MANU / SC / 0011 / 1986

shall complete the trial expeditiously and pronounce the judgment within three (3) months from the date of receipt of copy of this judgment. To avail this opportunity, the petitioner shall deposit 15% of the decretal amount in addition to 50% of which he already deposited, within three (3) weeks from the date of this judgment, failing which this appeal shall deemed to be dismissed. No costs."

(c) Be that it may, the docket order dated 17.08.2022 passed by the

learned trial Judge would show that the counsel for defendant sought to

file a fresh chief affidavit of the defendant (DW1) before the trial Court

which was objected by the counsel for plaintiff on the ground that already

the defendant filed his chief affidavit which was eschewed for his failure

to appear before the Court and since his appeal was allowed and

defendant was given an opportunity to attend the Court for cross-

examination and to adduce further evidence, the defendant cannot be

permitted to file fresh chief affidavit and on the other hand, the plaintiff

has to be permitted to cross-examine him on the strength of his previous

chief affidavit. However, the counsel for defendant contended that the

earlier chief affidavit of DW1 was eschewed by the trial Court and

therefore, the said chief affidavit was no more a valid evidence and the

defendant is entitled to file fresh chief affidavit.

(d) The docket order would further show that the trial Court opined

that since the appellate Court set aside the trail Court's decree and

judgment dated 18.09.2017 and directed the defendant to face the cross-

examination, order of eschewing of the chief affidavit of DW1 stood set

aside and the said chief affidavit can be considered as the chief evidence

of DW1. With the said observation, the trial Court, it would appear,

proposed to return the fresh chief affidavit of DW1 with a direction to the

defendant to face the cross-examination basing on earlier chief affidavit

filed on 09.08.2017. At that stage, the defendant requested for time to get

clarification from the appellate Court with regard to the defendant's right

to file fresh chief affidavit and the trial Court granted time.

(e) Accordingly, the petitioner / appellant filed I.A.No.2/2022

requesting this Court to pass orders clarifying that the defendant is

entitled to file a fresh chief affidavit or alternatively permit him to file

additional affidavit, in addition to the chief affidavit already placed on

record on 09.08.2017.

3. The respondent / plaintiff filed counter and seriously opposed the

petition on the main contention that on the pretext of seeking

clarification, the petitioner / appellant seeks review of the judgment in

appeal which is not permissible under law.

4. Heard arguments of learned counsel for petitioner / appellant Sri

G.V.R.Choudary, and Smt. S.Pranathi, learned counsel for the respondent

/ plaintiff.

5. Both the learned counsel reiterated their pleadings in their

respective arguments. The main plank of argument of the learned counsel

for petitioner in support of his plea that he shall be permitted to file a

fresh chief affidavit is that his earlier chief affidavit dated 09.08.2017 was

since eschewed by the trial Court, therefore the same was no more on

record and the same is not admissible in evidence. This argument, it must

be said, has no substance or force. It is true that the chief affidavit of

DW1 dated 09.08.2017 was eschewed by the trial Court on 08.09.2017 on

account of his failure to turn up to the Court for facing cross-examination.

Later, the Court heard arguments and passed the decree. This Court

having relied upon the judgment of the Apex Court in Prakash Chander

Manchanda (1 supra) treated the trial Court's decree and judgment as ex

parte, set aside the same with certain directions as stated supra. This

Court directed the trial Court to fix the date for defendant's evidence and

give him an opportunity to attend the Court for his cross-examination and

for adducing further evidence. The aforesaid direction pellucidly tells

that the order of the trial Court in eschewing the chief affidavit of DW1

was set aside by this Court with a direction to the trial Court to afford an

opportunity to the defendant / appellant to attend the Court for cross-

examination and also for adducing further evidence. It is needless to

emphasize that the appellate judgment has revived the earlier chief

affidavit of DW1 for the purpose of cross-examination. Therefore, the

petitioner / appellant now cannot contend that since his chief affidavit

was eschewed, the same is no more admissible in evidence in terms of

Section 33 of the Evidence Act and thereby he shall be permitted to file

fresh chief affidavit. The judgment in Aziz Ahmed Khan v. I.A. Patel2

of the High Court of A.P. relied upon by the learned counsel for

petitioner can be distinguished on facts. In that case, the facts are that the

suit was a money suit and on receiving the summons the defendant did

not enter appearance and hence, he was set ex parte and the plaintiff's

evidence was taken on 09.10.1963 and suit was decreed accordingly.

Later, the defendant filed I.A.No.489/1963 which was allowed and ex

parte decree was set aside and the defendant filed written statement on

14.02.1964. Later, when the suit was posted for trial, the defendant and

his pleader were absent on 17.08.1964 and 20.08.1964. Hence, the suit

was posted to 08.09.1964 and on that day also the defendant was absent.

The defendant was set ex parte and basing on the evidence of the

plaintiff, which was adduced after the defendant was set ex parte for the

first time, the suit was decreed. Before the High Court, the contention of

the appellant / defendant was that the evidence recorded in his absence,

which forms the basis of the previous ex parte decree, cannot be taken as

legal evidence once the ex parte decree was set aside, so that it may be

used against him at any subsequent stage of the suit. Hence, the main

AIR 1974 AP 1

question that arose for consideration before the High Court of A.P. was

that whether the evidence recorded in the absence of the defendant on the

basis whereof an ex parte decree was passed, can, after the said ex parte

decree is set aside, still validly form the basis of judgment and decree at a

fresh trial. In that context, referring to the judgments of various High

Courts, it was observed by the Division Bench of the High Court of A.P.

as follows:

"16. These observations, with great respect, contain the correct exposition of law. It follows that where an ex parte decree is set aside, all the proceedings which took place subsequent to the stage of the non-appearance of the defendant leading to the decree are set aside and they are not binding on the defendant .

"20. The result of the above discussion is that having regard to the facts and circumstances of the present case, the trial Court was not justified in passing a decree in favour of the plaintiff. Firstly when the ground under the Money Lenders Act was raised, unless it be proved that the said Act had no application or if applicable the plaintiff had complied with the requisite provision, the Court could not go into the merits to pass a decree in favour of the plaintiff. Secondly, even otherwise when the plaintiff had not brought on record material which is legal and admissible evidence, no decree could be passed in his favour. Certainly the testimony of the plaintiff recorded at an earlier stage when the proceedings were ex parte was not legal evidence after the ex parte proceedings or decree was set aside. Lastly, the judgment , given by the Court was no judgment in the eye of law. For all these reasons the appeal must be allowed, the ex parte decree should be set aside and the Court should be directed to proceed with the case from the stage the proceedings were set ex parte against the defendant and dispose of the suit in accordance with law. The appeal is accordingly allowed. The costs of this appeal shall abide the result of the suit."

6. Thus, in essence, the evidence of the plaintiff which was adduced

after the defendant was set ex parte for the first time was brushed aside

once the ex parte order was set aside and the said evidence which is not

admissible under law was held, could not be used after the defendant was

set ex parte for the second time. It is needless to emphasize that the facts

in the present case are quite different. In the instant case, the defendant

filed his sworn affidavit while he was contesting the matter. At that stage,

he was not set ex parte. Thereafter due to his non-absence his chief

affidavit was only eschewed. He was not even set ex parte thereafter by

the trial Court. Of course, the judgment passed thereafter was held as an

ex parte decree in the light of the Apex Court judgment in Prakash

Chander Manchanda (1 supra). Be that as it may, the defendant now

cannot contend that the chief affidavit which he filed at the earlier stage is

not a valid and admissible evidence and hence, he should be permitted to

adduce fresh evidence (obviously with new facts). Such permission

cannot be granted in view of the above discussion. Therefore, as directed

in the appellate judgment, the defendant / appellant shall appear before

the trial Court and face the cross-examination with reference to the chief

affidavit earlier filed by him. He can of course adduce further evidence

as permitted in our judgment.

(a) The alternative prayer of the petitioner / appellant that in

addition to the chief affidavit already filed by him on 09.08.2017, he may

be permitted to file additional affidavit is concerned, if the petitioner /

appellant files any petition seeking permission to file additional affidavit,

the trial Court after affording an opportunity of filing counter to the

respondent / plaintiff and on hearing both parties, pass an appropriate

order on merits.

With the above observations, this application is dismissed.

__________________________ U. DURGA PRASAD RAO, J

_______________________ T.RAJASEKHAR RAO, J 05.01.2023 mva