Andhra Pradesh High Court - Amravati
Ganipineni Prasad Rao, Nellore Dist vs Siddareddy Sushmita, Nellore Dist on 5 January, 2024
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
C.M.A.No.247 OF 2017
JUDGMENT:
The Appellant herein is the 1st defendant before both the
Court below filed the present Civil Miscellaneous Appeal before this
Court, aggrieved by the order dated 04.11.2016 in I.A.No.751 of
2015 in O.S.No.197 of 2010 on the file of the Court of the I
Additional District Judge, Nellore, SPSR Nellore District (in short
'the court below').
2. Initially the 1st respondent/ plaintiff filed a suit for grant
of permanent injunction against the defendants. In the said suit
the appellant filed an application vide I.A.No.751 of under IX, Rule
13 of CPC to set aside the exparte decree dated 24.07.2015 passed
against the appellant and permit him to contest the suit. The court
below dismissed the application holding that there are no
satisfactory grounds to set aside the exparte decree. Assailing the
same, the present C.M.A came to be filed.
3. Heard Mr.V. Siva Prasad Reddy, learned counsel for the
appellant/ 1st defendant and Mr. S.V.Muni Reddy, learned counsel
for the respondent/plaintiff.
4. During hearing learned counsel for the appellant would
contend that the court below failed to consider that the expression
'sufficient cause' employed by the legislature is adequately elastic
to enable the courts to sub serve ends of justice and the courts
should adopt liberal approach in deciding the application and
ought to have allowed the application as the absence of the
petitioner is neither wilful nor wanton as stated in the affidavit.
Further the suit was at fag end stage, if the application is allowed,
no prejudice will be caused to the respondent. Hence the C.M.A is
liable to be allowed.
5. Whereas, learned counsel for the respondent/plaintiff
reiterated the contentions urged before the courts below and
mainly contended that the appellant has not shown sufficient
cause to set aside the exparte decree dated 24.07.2015. Therefore
the court below has rightly discussed the issue in right perspective
and dismissed the impugned application. Therefore the appellant is
not entitled to claim any relief in this C.M.A.
6. Perused the record.
7. During the course of hearing, learned counsel for the
respondents placed on record the decision of the Hon'ble Supreme
Court in "Parimal v. Veena Alias Bharti"1, wherein it was held
as follows:
"27. In view of the aforesaid statutory requirements, the
High Court was duty-bound to set aside at least the material
(2011) 3 SCC 545
findings on the issues, inspite of the fact that approach of the
Court while dealing with such an application under Order 9 Rule
13 CPC would be liberal and elastic rather than narrow and
pedantic. However, in case the matter does not fall within the
four corners of Order 9, Rule 13 CPC, the Court has no
jurisdiction to set aside an ex parte decree. The manner in which
the language of the second proviso to Order 9 Rule 13 CPC has
been couched by the legislature makes it obligatory on the
appellate court not to interfere with an ex parte decree unless it
meets the stator requirement".
8. Further he relied on a decision of this Court in "Putluri
Anjaneyulu @ Anjaneya Reddy v. Suravarapu Pitchi Reddy"2,
wherein it was held as follows:
"15. It is also settled law as laid down by the Hon'ble
Supreme Court in Sugandhi's case (supra) and Basawaj's case
(supra), that sufficient cause is distinct from good cause and
sufficient cause be given liberal interpretation if negligence,
inaction, or lack of bona fides cannot be imputed to the
defendant.
16. It is also an established principle of law that if
negligence, inaction, or lack of bona fides are made out and the
cause pleaded by the petitioner is not established, the Court has
no power to extend the limitation on equitable grounds.
17.....
18. The defendant did not place any proof before the
Trial Court to establish that he was busy in agricultural
operations at the relevant point in time, and therefore, he could
not attend the Court.
19.When the opposite party disputed the truth of the
cause pleaded by the petitioner, it shall be established on facts,
2023(4) ALD 480 (AP)
then only, the question whether it is a sufficient causer would
arise, and while considering the same, it can be given a liberal
interpretation."
9. As could be seen from the impugned order of the court
below as per Order 9, Rule 13 CPC contemplates that the person
who applies to the Court by which a decree was passed should
satisfy the Court that he was prevented by any sufficient cause
from appearing when the suit was called on for hearing. Then the
court can set aside the decree. But the affidavit is silent about his
absence on that date when he was set exparte. Further the court
below clearly disclosed the each and every proceeding mentioned in
the docket, would show the conduct of the appellant. Therefore the
court below dismissed the application.
10. Since it is a suit for bare injunction in respect of the
plaint schedule property filed against the defendant, who is
appellant herein has filed his written statement. It is the
contention of the appellant that he had fair chances of success and
having good case on hand, therefore he constrained to file the
application. However, it is very crucial to record the evidence and
also to peruse the material evidence on record to decide the suit in
the nature of suit for bare injunction. It is glaring fact that the
appellant has not shown interest to proceed with the trial as per
docket proceedings and he has not shown any plausible reasons
why he failed to proceed with the suit and why he remained
absence on that date, when he remained set exparte.
11. Having regard to the facts and circumstances of the case,
considering the submissions of both the counsel and to meet the
ends of justice, this Court is inclined to allow the C.M.A, while
setting aside the impugned order dated 04.11.2016, on payment of
costs of Rs. 10,000/- which shall be deposited into the suit
account before the court below, within a week from the date of
receipt of a copy of this order, failing which the same shall be
cancelled without further reference to this Court.
12. With the above direction, the C.M.A is allowed. It is
further directed the court below to dispose of the suit on merit at
the earliest, since the suit is of the year 2010, which is old one and
further directed the both the parties to co-operate the court below
for disposal of the suit at the earliest. There shall be no order as to
costs.
As a sequel, miscellaneous applications pending, if any, shall
also stand closed.
___________________________
DR.K. MANMADHA RAO, J
Date: 05.01.2024
KK
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
C.M.A.No.247 OF 2017
Date: 05.01.2024
KK
