Andhra Pradesh High Court - Amravati
Smt.P.Chandrakala vs M/S.Karnataka State Industrial And ... on 6 August, 2024
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
*THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
+ CIVIL MISCELLANEOUS APPEAL NO: 498/2023
%06.08.2024
# Smt. P. Chandrakala.
......Appellant
And:
$1. M/s. Karnataka State Industrial and
Development Corporation Ltd., &
7 others
....Respondents.
!Counsel for the petitioner : Sri Maheswara Rao Kuncheam
^Counsel for the respondents : Sri N. Ashwani Kumar
Sri Virupaksha Dattatreya Gouda rep.
Sri Vivekananda Virupaksha
<Gist:
>Head Note:
? Cases referred:
1. (2000) 3 SCC 54
2. CRP(C.R.P Art 227) No.40 of 2014
Dated 04.02.2022 High Court of Manipur at Imphal
3. (2002) 3 SCC 156
2
HIGH COURT OF ANDHRA PRADESH
****
CIVIL MISCELLANEOUS APPEAL NO: 498/2023
DATE OF JUDGMENT PRONOUNCED: 06.08.2024
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the fair Yes/No
copy of the Judgment?
___________________
RAVI NATH TILHARI, J
________________
NYAPATHY VIJAY,J
3
APHC010495582023
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3470]
(Special Original Jurisdiction)
TUESDAY ,THE SIXTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CIVIL MISCELLANEOUS APPEAL NO: 498/2023
Between:
Smt.p.chandrakala ...APPELLANT
AND
M/s Karnataka State Industrial And Development ...RESPONDENT(S)
Corporation Limited and Others
Counsel for the Appellant:
1. MAHESWARA RAO KUNCHEAM
Counsel for the Respondent(S):
1. N ASHWANI KUMAR
2. VIVEKANANDA VIRUPAKSHA
The Court made the following:
4
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CIVIL MISCELLANEOUS APPEAL NO: 498/2023
JUDGMENT:
(per Ravi Nath Tilhari, J)
Heard Sri Maheswara Rao Kuncheam, learned counsel for the
appellant, Sri N.Ashwani Kumar, learned counsel for respondent No.1 and Sri
Virupaksha Dattatreya Gouda, learned counsel representing Sri Vivekananda
Virupaksha, learned counsel for respondent No.8.
2. This appeal under Order 43 Rule 1 CPC has been filed by the appellant
who is the applicant in E.A.Nos. 932 of 2023 and E.A.No.290 of 2019 filed
under Order 21 Rule 58 of CPC in E.P.No.52 of 2007 in M.C.No.185 of 2001.
By means of this appeal, the appellant challenges the rejection of her
application E.A.No.932 of 2023 under Order 9 Rule 9 CPC by an order dated
11.09.2023.
3. The respondent No.1- M/s. Karnataka State Industrial and Development
Corporation Ltd., is the Decree Holder (D.Hr.) in MC.No.185 of 2001.
Respondent Nos.2 to 7 are the Judgment Debtors (J.Drs.). In E.P.No.52 of
2007 for execution of decree by respondent No.1, the property was attached.
The appellant filed the application i.e., E.A.No.290 of 2019 under Order 21
Rule 58, claiming the property. The said application was dismissed in non-
prosecution on 04.07.2023 and for setting aside that order, E.A.No.932 of
2023 was filed under Order 9 Rule 9 CPC which has been rejected on
11.09.2023.
4. The respondent No.8 is the auction purchaser in the auction by
Execution Court which vide order dated 17.11.2023 confirmed the sale.
5. In the present appeal by interim order dated 22.11.2023, while admitting
the appeal, the further proceedings of the EP were stayed for a specific
period, which interim order was extended from time to time.
6. Learned counsel for the appellant submits that the appellant had shown
the sufficient cause for her non appearance on 04.07.2023. The execution
Court committed illegality in rejecting the application. He submits that under
Order 9 Rule 9 CPC, if there was sufficient cause for the non appearance
when the suit was called on for hearing i.e., on the particular date, the
application should have been allowed. But, the Execution Court considering
the previous dates/events has rejected the application and in that light, it
considered the cause shown as not sufficient. He places reliance in the case
of G.P.Srivastava v. R.K.Raizada1.
7. Sri N.Ashwani Kumar, learned counsel appearing for respondent No.1
submits that previously also the applicant's application was rejected. He
submits that the cause shown was not sufficient and no illegality has been
committed by the Execution Court in passing the order impugned.
(2000) 3 SCC 54
8. Sri Virupaksha Dattatreya Gouda, learned counsel representing Sri
Vivekananda Virupaksha, learned counsel for respondent No.8 submits that
there are no bonafides in filing the application. The cause shown is not
sufficient. He submits that previously also applications under Order 21 Rule 58
CPC were filed by the other persons claiming to have purchased the same
property from the same appellant which were also rejected for want of
prosecution. He places reliance in Longjam Bijoy Singh v. Keisham Irabot
Singh 2 , to contend that there should be bonafides and sufficient cause to
allow the application.
9. We have considered the submissions advanced by the learned
counsels for the parties and perused the material on record.
10. In view of the submissions advanced, the following point arises for our
consideration:
― Whether the rejection of the appellant's application under Order 9
Rule 9 CPC is justified ?‖
11. The facts are not in dispute. The appellant filed the petition under Order
21 Rule 58 CPC to raise the attachment order. Notice was issued to the
respondents in the petition. They filed counter. The matter was adjourned from
time to time i.e., from 27.09.2019 to 13.12.2019 on the ground that the
petitioner was not ready. The petitioner filed chief affidavit on 31.12.2019. The
matter was adjourned from time to time till 24.03.2020. She did not appear
CRP(C.R.P Art 227) No.40 of 2014
Dated 04.02.2022 High Court of Manipur at Imphal
and did not file examination in chief. On 09.04.2020, the matter was adjourned
due to outbreak of corona till 31.12.2022. During the said period, as observed
by the Execution Court, the appellant did not appear even through virtual
mode. On 03.03.2023 a joint memo was filed by both the parties to refer the
matter to lok adalat for settlement. The matter was not settled. It was listed
before Execution Court for examination of the appellant, PW1 on 08.04.2022
and from 08.04.2022 to 02.11.2022, the appellant - PW1 remained absent.
EA was dismissed on 02.11.2022. However, the application under Order 9
Rule 9 CPC was allowed on 28.11.2022. The matter was again referred to lok
adalat but it was not settled and was sent back to regular Court. From
08.02.2023 to 15.03.223, the matter was adjourned for examination of PW1.
Again on 24.03.2023, the Court dismissed her petition for default. Thereafter
on 17.04.2023, the application under Order 9 Rue 9 CPC was allowed. The
chief affidavit of PW1 was filed. The matter was posted to 18.04.2023 for
cross examination. On 18.04.2023, the appellant changed her counsel. On
25.04.2023, the additional chief affidavit was filed. Ex.A1 to A4 were marked
and matter was posted to 01.05.2023 for cross examination. On 01.05.2023,
PW1 was present but stated that she was going to compromise the matter. So
the matter was again referred to lok adalat on 08.05.2023 from where it was
again returned to regular Court on 13.05.2023 as it could not be settled; both
the parties being absent. The matter was posted to 26.06.2023 for cross
examination of PW1. On 26.06.2023, she was not present. On costs of
Rs.500/-, the matter was posted to 04.07.2023. On 04.07.2023 also the PW1
was not present. The order was passed and the petition E.A.No.290 of 2019
was dismissed.
12. The appellant filed application EA.No.932 of 2023 under Order 9 Rule 9
CPC which was rejected on 11.09.2023.
13. From the aforesaid, it is evident that, on the request of the parties, the
matter was sent to lok adalat thrice, but it could not be settled for one reason
or the other. Consequently, the same was sent back to the regular Court.
14. It is further evident that inspite of many opportunities, the appellant as
PW1 did not timely file the chief examination and then, did not produce her for
cross examination. The submissions of the learned counsels for the
respondent Nos.1 & 8 therefore have got some force that the appellant is
delaying the proceedings, but we can also not loose sight of the fact that after
the previous petitions under Order 9 Rule 9 CPC were allowed, setting aside
the previous proceedings of dismissal in default; as also the corona pandemic
2019; which was also a factor for delay, the previous conduct of proceedings
ought not to have influenced, so much to the learned Execution Court, in
rejecting the EA.No.932 of 2023 and particularly when it found and recorded
that the cause shown for dismissal on 04.07.2023 was supported by medical
reports of the appellant to which we would shortly advert.
15. Before proceeding further we would refer to Order 9 Rule 9 CPC.
16. Order 9 Rule 9 CPC reads as under:
9. Decree against plaintiff by default bars fresh suit.-
(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be
precluded from bringing a fresh suit in respect of the same cause of action. But he
may apply for an order to set the dismissal aside, and if he satisfies the Court that
there was sufficient cause for his non-appearance when the suit was called on for
hearing, the Court shall make an order setting aside the dismissal upon such
terms as to costs or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has
been served on the opposite party
17. So, with respect to the provisions of Order 9 Rule 9 CPC we have to
consider the cause shown for the non-appearance of the appellant when the
suit was called on for hearing i.e., on the particular date i.e., which is
04.07.2023.
18. In G.P.Srivastava (1st supra) the Hon'ble Apex Court held as under:
"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 erring party. Sufficient
cause for the purpose of Order 9 Rule 13 has to be construed as elastic
expression for which no hard and fast guidelines can be prescribed. The courts
have 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 initiated against him, he cannot be penalized for his previous
negligence which had been overlooked and thereby condoned earlier. In a
case where defendant approaches the Court immediately and within the statutory
time specified, the discretion is normally exercised in his favour, provided the
absence was not malafide 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."
19. The said judgment is under Order 9 Rule 13 CPC. However, from
reading of both the provisions, Rule 13 & Rule 9 of Order 9, it is evident that in
both the applicant has to satisfy the Court that there was sufficient cause for
non-appearance when the suit was called on for hearing.
20. Order 9 Rule 13 CPC reads as under:
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
defendants also:
1 [Provided further than 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 hearing and had sufficient time to
appear and answer the plaintiff's claim.]
2 [Explanation.--Where there has been an appeal against a decree passed ex
parte under this rule, and the appeal has been disposed of an any ground other than
the ground that the appellant has withdrawn the appeal, no application shall lie under
this rule for setting aside that ex parte decree.]
21. Therefore, the judgment in G.P.Srivastava (1st supra) in our view
would be applicable to the case under Order 9 Rule 9 CPC as well. The
appellant therefore could not be penalized for her previous conduct of
negligence.
22. We may also refer Davinder Pal Sehgal v. Partap Steel Rolling Mills
Pvt. Ltd.3, in which one of the submissions advanced was that the application
for restoration under Order 9 Rule 9 CPC was dismissed earlier for non
prosecution. The Hon'ble Apex Court observed that such earlier dismissal
could not be taken to be a ground for throwing out the restoration application
i.e., for another time, as previously the High Court had set aside the order of
Trial Court dismissing the restoration application for non-prosecution and the
order attained finality. The relevant observation in para 7 of Davinder Pal
Sehgal (2nd supra) is as under:
"The submission of the learned counsel appearing on behalf of the respondents
that application for restoration filed on behalf of the plaintiffs was dismissed earlier
for non-prosecution cannot be taken to be a ground for throwing out the
restoration application as the High Court on the earlier occasion set aside order of
the trial court whereby restoration application was dismissed for non-prosecution
and the said order attained finality."
23. In the present case also the previous order setting aside the dismissal
in default attained finality and on that ground the present application could not
be rejected by the Trial Court.
24. The cause shown in the petition under Order 9 Rule 9 CPC was that on
04.07.2023, the appearance could not be made as the appellant was
hospitalised on 29.06.2023 at Divya Sree hospitals, Anantapuramu and she
was under treatment for operation of kidneys. In support of the said cause, the
documents were also filed. The Execution Court also recorded in para - 9 of
its order as under:
(2002) 3 SCC 156
".........No doubt to show her bonafides, the petitioner filed medical bills that she
underwent treatment and hospitalized from 15.05.2023 to 18.05.2023 and
underwent for 2D ECHO Test on 30.06.2023. The reports show that the petitioner
suffering with ailment ......"
25. However, the Court rejected the application observing as follows:
"..........but was not bed ridden and not advised to take bed rest. Hence, only to
show cause for her absence, the petitioner filed the medical reports, which are not
helpful to the petitioner as her absence is not genuine on the ground of
ailment......."
26. We find that the reason assigned by the Court for being not satisfied, for
condoning the delay is too strict a view to be taken. A lenient view, in such
matter, in favour of opportunity of hearing, to do complete justice deserves to
be taken. The Courts have always leaned in favour of opportunity of hearing
and have construed ‗sufficient cause' liberally and leniently. In our view
sufficient cause was shown for non appearance on 04.07.2023 when the suit
was called for hearing. The view taken by Execution Court cannot be said
even a possible view, in the light of the observations made by Execution
Court, with respect to the medical report, as reproduced above. The
appellant, it appears to us, has in fact been penalized for her previous
conduct. The order dated 04.07.2023 should have been set aside granting at
least one more opportunity. The discretion has not been exercised by the
Court judiciously.
27. In Longjam Bijoy Singh (2nd supra) the cause shown was mistake of
the counsel in not attending the Court. The Manipur High Court did not find
that to be sufficient. In the present case, the cause shown is sufficient. The
aforesaid judgment is not applicable to the facts of this case.
28. The submission of the learned counsel for the respondent No.8, that
previously also some applications were filed by some other persons which
were rejected in non prosecution, in our view even if be taken as correct; that
would not take away the right of the appellant to seek her remedy against the
order passed in her case against her.
29. Thus considered to provide an opportunity to the appellant, the order
dated 11.09.2023 is set aside. We also set aside the order dated 04.07.2023,
having recorded that the cause shown for non appearance on 04.07.2023,
was sufficient. The appeal is allowed however with the following further
directions:-
i) The appellant's case in EA No.290 of 2019 shall be considered in
accordance with law.
ii) The appellant shall not seek unnecessary adjournments and would
produce PW1 for cross examination, on the next date, to be fixed by the
Execution Court, on the receipt of this order.
iii) The cost imposed vide order dated 26.06.2023, if not paid by the
appellant, shall be paid before the next date, to be fixed by the Court,
pursuant to para (ii) supra.
iv) The Execution Court, if adjournment is considered necessary, shall
record reasons for such adjournment and if required shall be subject to
imposition of costs.
v) The auction and the rights of the auction purchaser/respondent No.8
shall remain subject to the orders passed in EA.No.290 of 2019 in
E.P.No.52 of 2007 in MC.No.185 of 2001.
No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending, shall also
stand closed.
____________________
RAVI NATH TILHARI, J
____________________
NYAPATHY VIJAY, J
Dated: 06.08.2024
Note: L.R. copy be marked
B/o.
AG
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CIVIL MISCELLANEOUS APPEAL NO: 498/2023
Dated: 06.08.2024
Note: L.R. copy be marked
B/o.
AG
