P Satyavathi, Visakhapatnam Dist ... vs Mamidi Satyanarayana, ...
2023 Latest Caselaw 4721 AP

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            THE HON'BLE DR.JUSTICE K. MANMADHA RAO

                          C.R.P.No.1807 of 2016

ORDER:

Aggrieved by the orders dated 11.02.2016 passed in

I.A.No.389 of 2015 in O.S.No. 48 of 2013 on the file of the Court of

Additional Senior Civil Judge, Ankapalle, (in short 'the court

below') the present revision is filed.

2. The petitioners herein are the defendants; 1st respondent

herein is the plaintiff; 2nd respondent herein is the 2nd defendant

before the court below.

3. The 1st respondent/ plaintiff has been filed a suit in

O.S.No. 48 of 2013 for recovery of money basing on the suit

mortgage deed against the defendants therein. The said suit was

decreed preliminarily on 13.02.2015. In the said suit the

impugned application has been filed under Section 5 of Limitation

Act, seeking to condone the delay of 116 days in filing the

application to set aside the preliminary decree dated 13.02.2015 in

the above suit, which was dismissed. Assailing the same the

present revision came to be filed.

4. Heard Mr. Mangena Sree Rama Rao, learned counsel for

the petitioners and Mr. Prabhala Rajasekhar, learned counsel for

the 1st respondent.

5. During hearing learned counsel for the petitioners would

contend that the defendants were set exparte in the suit on

13.02.2015, after filing of the written statement and examination

of the PWs-1 and 2. For which the petitioner has filed an

application under order 9, rule 13 to set aside the exparte decree

along with an application to condone the delay of 116 days in filing

the said application, wherein it was stated that the petitioners

went to Vizianagaram for livelihood and from October, 2014

onwards the petitioner fell sick at Vizianagaram with old age

ailments, as such she could not attend the cross examine the PWs

1 and 2. There are admitted facts apparent on the face of the

record, without considering the same, the court below erroneously

dismissed the application. The observation of the court that the

petitioner did not file any document of proof to show her ill health,

which is incorrect, the court below cannot dismissed the

application on such ground. Therefore the revision is liable to be

allowed.

6. Whereas learned counsel for the 1st respondent would

contend that the defendants filed the application only to dodge the

proceedings for unlimited period. In such a case the plaintiff will

suffer great loss, besides that the counsel for the defendants has

cross examined PWs-1 and 2 at length, hence it cannot be said

that the matter was proceeded exparte. Therefore the revision is

liable to be dismissed.

7. Perused the record.

8. The 1st petitioner/ defendant filed an affidavit stating that

her son, the 2nd defendant is at Dubai, as such she suffered a lot

and was caused to starvation for some time. Further she shifted to

Vizianagaram for livelihood nearly about two years back, where

she was working in Private Hostel. From October, 2014 onwards

she fell sick due to old age ailments and when the matter was

posted for evidence of defendants, there was no contacts with their

counsel. As such she could not proceed with trial by adducing

evidence. But the defendants pleaded that they have good case on

merits, having fair chances of success in the suit.

9. Learned counsel for the 1st respondent placed reliance on

the decision of this Court in "In re Ramineni Suryanarayana"1

wherein it was held as follows:

"4. In the instant case, from the proceedings of the Court and the Judgment recorded by it, it is clear that the defendant was present through his counsel both on 3-7-1978 and 4-7-1978. The evidence was recorded in his presence and the judgment was pronounced in his presence. Although he sought an adjournment was refused he did not cease to represent the defendant - petitioner. He did not report 'no instructions'. He did not withdraw from the case or fail to participate in the proceedings. Merely because he did not lead any evidence to substantiate the plea taken by the defendant, it cannot be said that the defendant was set exparte and an ex parte judgment and decree was rendered against him. Consequently a petition under Order 9, Rule 13 C.P.C does not lie. That is what the lower court has held and I see no reason to interfere with the order. Even otherwise, assuming that a petition under Order 9, R.13 does lie, there are no merit in the petition. He has not adduced any explanation as to why he could not be present although several adjournments were given".

10. It is evident that in the suit the defendants filed written

statement, issues were framed and examined PWs 1 and 2 and

they were cross examined by the defendants at length. After

hearing on both sides, the court passed a decree and it cannot be

said that it is an exparte decree. Further the defendants nowhere

1 AIR 1980 AP 129

stated in its affidavit that they have cross examined PWs-1 and 2

and kept silent in that aspect. Further the defendants have not

produced any documentary proof showing that one of the

defendant is at Dubai and she is suffering with ill health and

working in private hostel at Vizianagaram.

11. Upon perusal of the entire material on record would

show that the defendants counsel have cross examined the PWs 1

and 2 at length and later court below passed the preliminary

decree. To that effect the court below clearly mentioned at Para 6

of the Judgment that during the course of trial, the plaintiff is

examined himself as PW-1 and the attestor of the mortgage deed is

examined as PW-2. The defendants are failed to adduce evidence

inspite of sufficient time being granted by the court below and

there is no evidence from the defendants' side. However, the

defendants are cross examined PWs 1 and 2, which is sufficient to

disprove the contention of the petitioners. Therefore the revision

deserves to be dismissed as this Court finds any impropriety or

illegality in the impugned order. The decision cited supra by the

learned counsel for the 1st respondent is squarely applicable to the

facts of this case.

12. It is made clear that the defendants i.e petitioners

ignoring the all the facts and circumstances have deliberately filed

this revision only to dodge the proceedings to cause inconvenience

to the court below to proceed further steps. It is nothing but vague

revision on flimsy grounds.

13. In view of the foregoing discussion, the C.R.P is

dismissed. There shall be no order as to costs.

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

shall stand closed.

___________________________________ DR.JUSTICE K. MANMADHA RAO Date: 06.10.2023.

KK

THE HON'BLE DR.JUSTICE K. MANMADHA RAO

C.R.P.No.1807 of 2016

Date 06.10.2023.

KK