Andhra Pradesh High Court - Amravati
Duvvuru Saraschandra vs Sakaria Surekha on 12 January, 2024
1
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
CIVIL MISCELLANEOUS APPEAL No.56 of 2022 and CIVIL
REVISION PETITIONS Nos.306 & 307 of 2022
COMMON JUDGMENT:
As the issue involved in these three matters is one and the
same, these matters are taken up together for disposal by this
Common Order.
2. Originally, the suit in O.S.No.196 of 2016 was filed by the
plaintiff for recovery of amount of Rs.20,16,209/- on the file of I
Additional District Judge, Nellore (for short "the Court below") from
the defendants together with costs. When the suit was posted on
02.12.2021 for trial, the plaintiff filed PW.1 affidavit and all
documents were marked. However, as the defendants called
absent on that day, they were made set ex parte and the matter
was posted for judgment on 15.12.2021. When the defendants
came to know that the matter was posted for judgment,
immediately they moved the present impugned applications vide
I.A No.436 of 2021 under Order IX Rule 9 CPC read with Section
151 CPC seeking to set aside the ex parte order dated 2.12.2021;
I.A No.437of 201 under Section 151 CPPPC seeking to reopen the
above suit for cross examination of PW.1 and PW.2 and for costs
and I.A No.438 of 2021 under Order XVIII Rule 17 CPC read with
Section 151 CPC seeking to recall PW1 and PW.2 for the purpose
of cross examination. The same were dismissed by the Court
below vide common order dated 04.01.2022. Aggrieved by the
same, the present three matters came to be filed.
3. Heard Sri V. Siva Prasad Reddy, learned counsel for the
appellant/petitioners and Sri S. Harinadha Reddy, learned counsel
for the respondents.
4. On hearing, learned counsel for the appellants/
petitioners submits that the order passed by the Court below is
highly illegal, irregular and flagrant violation of law. He submits
that the Court below erred in not allowing the petitions filed by the
petitioners. He mainly contended that the Court below failed to
consider that at any stage the Court can set aside the ex parte
order. He submits that the Court below on previous occasion i.e.,
on 23.11.2021 as the plaintiff called absent and he could not lead
his evidence on many adjournments, the lower Court posted the
matter for dismissal and when the matter was posted on
02.12.2021, there was no representation on the defendants side,
on that day itself, without giving fair chance, the Court below has
denied the opportunity of cross-examination for the better
appreciation of the facts erroneously dismissed the applications.
5. On the other hand, learned counsel for the respondents
contended that the suit was posted with condition of dismissal, as
such the plaintiff/respondent filed affidavit of PW.1, but the
petitioners absent and hence the Court set the petitioners ex parte
and that the Court below has rightly dismissed the applications.
Therefore, learned counsel refuted the submissions made by
learned counsel for the appellants/petitioners.
6. On a perusal of the material available on record and on
hearing the submissions of learned counsel, it is observed that the
suit pertains to the year 2016. When the said suit was posted to
23.11.2021, the plaintiff called absent and it was posted to
2.12.2021 under the caption 'for dismissal'. But chief affidavit of
PW.1 was filed, Ex.A1 to Ex.A9 were marked on that day. However
the defendants called absent, no representation, again the case
was kept aside and as there was no representation even at 3.45
p.m. they were set ex parte and therefore the matter was posted to
14.12.2021 for further evidence. On the said date i.e., on
14.12.2021 chief affidavit of PW.2 was filed and reported no
further evidence, arguments heard and the suit was posted to
15.12.2021 for judgment. Meanwhile, on 15.12.2021 the
appellants/defendants moved the present impugned applications.
7. Under our present adversary legal system where the
parties generally appear through their advocates, the obligation of
the parties is to select his advocate, brief him, pay the fees
demanded by him and then trust the learned advocate to do the
rest of the things. The party may be a villager or may belong to a
rural area and may have no knowledge of the court's procedure.
After engaging a lawyer, the party may remain supremely confident
that the lawyer will look after his interest. At the time of the
hearing of the case, the personal appearance of the party is not
only not required but hardly useful. Therefore, the party having
done everything in his power to effectively participate in the
proceedings can rest assured that he has neither to go to the High
Court to inquire as to what is happening in the High Court with
regard to his case nor is he to act as a watchdog of the advocate
that the latter appears in the matter when it is listed. It is no part
of his job.
8. A practice has grown up in the High Court amongst the
lawyers that they remain absent when they do not like a particular
Bench. May be he is better informed on this matter. Ignorance in
this behalf is our bliss. Even if I do not put our seal of imprimatur
on the alleged practice by dismissing this matter which may
discourage such a tendency, would it not bring justice delivery
system into disrepute? What is the fault of the party who having
done everything in his power and expected of him would suffer
because of the default of his advocate. If I reject this petition, the
only one who would suffer would not be the lawyer who did not
appear but the party whose interest he represented. The problem
that agitates us is whether it is proper that the party should suffer
for the inaction, deliberate omission, or misdemeanour of his
agent. The answer obviously is in the negative. May be that the
learned advocate absented himself deliberately or intentionally. I
have no material for ascertaining that aspect of the matter. I say
nothing more on that aspect of the matter. However, I cannot be a
party to an innocent party suffering injustice merely because his
chosen advocate defaulted. In view of the above, the party is not
responsible because he has done whatever was possible and was in
his power to do, the costs should be recovered from the advocate
who absented himself.
9. On considering the submissions of learned counsel for
the appellants/petitioners and also carefully perused the affidavits
filed with the applications to set aside the ex parte decree, to re
open the above suit for cross examination and to recall the
evidences of PW.1 and PW.2 for the purpose of cross examination,
this Court is of the considered view, the foreclosure of the
defendant's right to cross-examine the PW.1 & PW.2 has resulted
in grave prejudice to the right of defence of the
defendants/petitioners herein. Hence, this Court deems fit to
allow these matters.
10. Accordingly, all these matters are allowed. The
impugned orders in all these matters are hereby set aside. The
Court below is directed to recall and reopen the plaintiff's
witnesses (PW.1 & PW.2) evidence and permit the
petitioners/defendants to cross examine PW.1 & PW.2. Further,
since the suit pertains to the year 2016, the Court below is
directed to dispose of the suit, as expeditiously, as possible,
preferably, within a period of three (03) months from the date of
receipt of a copy of this order. There shall be no order as to costs.
11. As a sequel, miscellaneous applications pending, if any,
shall also stand closed.
___________________________________
DR.JUSTICE K. MANMADHA RAO
Date: 12 .01.2024.
Gvl
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
CIVIL MISCELLANEOUS APPEAL No.56 of 2022 and CIVIL
REVISION PETITIONS Nos.306 & 307 of 2022
Date : 12 .01.2024
Gvl
