Bandaru Srinivasa Rao vs Simhadri Subba Rao
2023 Latest Caselaw 2968 AP

Citation : 2023 Latest Caselaw 2968 AP
Judgement Date : 9 May, 2023

Andhra Pradesh High Court - Amravati

Bandaru Srinivasa Rao vs Simhadri Subba Rao on 9 May, 2023

                                          1


             THE HON'BLE DR.JUSTICE K. MANMADHA RAO

                        C.R.P.No.1058 of 2018

ORDER:

This Revision Petition, under Article 227 of the

Constitution of India, is preferred against the Order dated

25.01.2018 in I.A.No.244 of 2017 in O.S.No.92 of 2016 on the

file of the Court of Senior Civil Judge, Avanigadda (For short

„trial Court‟).

2. Heard Sri Sai Gangadhar Chamarthi, learned

counsel for the petitioner and Sri S.Bala Mohan Ranga, learned

counsel for the respondent.

3. The brief facts of the case are that the petitioner

herein is the defendant and the respondent herein is the

plaintiff who filed the suit in O.S.No.92 of 2016 for recovery of

money against the petitioner herein before the Court of Senior

Civil Judge, Avanigadda (For short "trial Court"). On

27.02.2017, when the suit is coming for the written statement

of the petitioner, the petitioner was unable to attend before the

Court to file the written statement as he has been suffering with

severe fever and vomiting, as such, he could not give

instructions to his counsel and not filed the written statement.

Thereafter, on 11.04.2017 due to over site he filed written

statement with a provision of Order 9 Rule 7 of the CPC, instead

of Order 9 Rule 13 of CPC. Showing the said reason, the trial

Court returned the written statement and on 13.04.2017, for

non-filing of written statement, he was set exparte and an

exparte decree was passed in this suit. Thereafter, on

19.04.20217, he represented the said I.A.

4. On hearing both sides, the learned Senior Civil

Judge, Avanigadda passed conditional order that the exparte

decree dated 13.04.2017 is hereby set aside, subject to payment

of half of the suit amount by 12.02.2017, if the petitioner fails

to deposit the said amount, this application is stands

dismissed. Against the said order, the petitioner/defendant

preferred this Revision Petition.

6. The learned counsel for the petitioner would

contends that the order i.e., deposit of half of the suit amount is

not reasonable and excessive and opposed to the principle laid

down by the Apex Court and there is no willful negligence on

the part of the petitioner in filing the written statement within

time and the petitioner had approached the trial Court by way

of the petition within time and the condition passed by the trial

Court is onerous and subjected the petitioner to hardship to

substantiate his right of defending in the suit and finally prays

to allow this petition.

7. Per contra, the learned counsel for the respondent

submits that there are no grounds in this Revision Petition and

prays to dismiss the Revision Petition. In support of his

arguments, he placed on reliance on the judgment in Gurram

Anjeswar Vs. S.Nagalaxmi,1 wherein this High Court held that:

"Having regard to the above, this Court feels to sub serve the ends of justice while sitting against the impugned order of the lower Court imposing condition of deposit of 50% of the decretal amount even onerous on its face including from the single Judge expression of this Court where other than interest only for principal sum 50% ordered to be deposited, thereby to modify and reduce to 1/3rd of the decretal amount due with entire costs."

8. It is the contention of the petitioner herein is that

there is no willful negligence on the part of the petitioner in

filing the written statement within time and the petitioner had

approached the trial Court by way of the petition within time

and the condition passed by the trial Court is onerous and

subjected the petitioner to hardship to substantiate his right of

defending in the suit. It is true, while setting aside the exparte

2017 (5) ALT 152 (S.B)

decree under Order 9 Rule 13 CPC, however such condition should

be reasonable and not harshly excessive.

9. In this case, the ex parte decree against the petitioner

was passed on 13.04.2017. The defendant filed petition under

Order 9 Rule 13 CPC on 19.04.2017, to set aside the exparte

decree. Admittedly, the petitioner herein filed petition under O.9

Rule 13 of the CPC, within 30 days. So, there is no delay in filing

the petition under Order 9 Rule 13 of the C.P.C.

10. In V.K. Industries and Others Vs. M.P. Electricity

Board, Rampur2, the Hon‟ble Apex Court held that:

"It is no doubt true that in restoring a case the court may impose conditions to deposit costs or the decretal amount or some portion thereof or to ask the defendant to give security but such conditions should be reasonable and not harshly excessive. In the impugned order the appellants are put on terms to deposit a sum of Rs.2,00,000/- and to furnish a bank guarantee for the remaining suit claim within a period of two months. In our view these terms are onerous, harsh and unreasonable in the facts and circumstances of the case and that too even before the trial of the suit on merits."

In the present case, the trial Court while passing the

impugned order, direct the petitioner herein to deposit the half

of the suit amount on or before 12.02.2018, and if the petitioner

fails to deposit the said amount, the petition stands dismissed.

(2) (2002) 3 SCC 159

In this case also the suit was ex parte decreed due non-filing of

written statement by the petitioner. So, in this case also the

trial was not yet commenced. As such, the principles laid down

in the Judgment of the Hon‟ble Apex Court squarely applicable

to the facts of the present case.

11. In view of the above discussion and considering the

principles laid down in the judgment of Hon‟ble Apex Court as