Andhra Pradesh High Court - Amravati
Unknown vs The Hon'Ble Ms. Justice B.S.Bhanumathi on 18 April, 2022
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Civil Revision Petition Nos.681 & 683 of 2019
COMMON ORDER:
C.R.P.No.681 of 2019 is directed against the order, dated 14.02.2019, passed in I.A.No.190 of 2018 in O.S.No.18 of 2017 on the file of the Court of the Junior Civil Judge, Sathyavedu.
C.R.P.No.683 of 2019 is directed against the order, dated 03.01.2019 passed in E.P.No.4 of 2018 in the aforesaid suit, directing detention of JDr in civil prison for a period of three months.
2. Heard Sri T.Janardhan Rao, learned counsel appearing for the revision petitioner/defendant/JDr in both the revisions. Though the respondent/ plaintiff/DHr engaged counsel in C.R.P.No.683 of 2019, no representation is made and in C.R.P.No.681 of 2019, the respondent did not enter appearance. Since both the revisions arose out of one suit in O.S.No.18 of 2017, they are heard together and are being disposed of by this common order.
3. The suit was filed for recovery of Rs.1,35,860/- basing on two credit bills and interest at the rate of 24% per annum claimed thereon. Summons were served on the defendant. As he failed to make appearance on 11.04.2017, the defendant was set ex parte and later, the suit was decreed on 12.06.2017. An execution petition in E.P.No.4 of 2018 was filed under Order XXI Rule 37 of the Code of Civil Procedure, 1908 (Code) on 16.03.2018 and the same was allowed on 03.01.2019 on contest. The defendant filed on 07.06.2018, I.A.No.190 2 BSB, J C.R.P.Nos.681 & 683 of 2019 of 2018 under Section 5 of the Limitation Act and Section 151 of the Code to condone delay of 360 days in filing petition under Order IX Rule 9 of the Code for restoration of the suit. Ex facie, it appears that there is an error in quoting the provision of law as Order IX Rule 9 of the Code, whereas it ought to be a petition under Order IX Rule 13 of the Code to set aside the ex parte decree.
(a) Anyhow, the petitioner/defendant contended that the suit credit bills are forged documents and that he could not engage a counsel for his appearance on 11.04.2017 as he fell ill and had been suffering from thyroid problem and various other ailments for which, he had taken regular treatment in hospitals at Nellore and Chennai and further, he had recovered from the ailments and thus, non-appearance of the defendant is neither willful nor wanton.
(b) The respondent/plaintiff filed counter opposing the petition denying the contention of the petitioner and further stating that the petitioner appeared through counsel and contested E.P.No.4 of 2018 and the EP is posted for further evidence of JDr and that the petitioner is doing business and attending work every day as was hale and healthy and the alleged ailments are creation and no proof was filed in support of the alleged ailments. It is also contended that number of days of delay mentioned in the petition is not correct and that if the petition is allowed, the matter will be dragged on further and the respondent would be put to loss and hardship.
(c) After hearing both the parties, the trial Court dismissed the petition on 14.02.2019, observing that the length of delay is not the criterion, but the petitioner has to explain the delay with sufficient cause. In this regard, it was observed that the petitioner was aware of 3 BSB, J C.R.P.Nos.681 & 683 of 2019 all the proceedings in the trial Court as well as execution Court and in order to drag on the proceedings, the present petition is filed on 07.06.2018, i.e., after filing of the execution petition on 16.03.2018.
It is also observed that if the petitioner has good case with documentary proof, definitely, the petition before the execution Court seeking the relief of stay of proceedings in execution in E.P.No.4 of 2018 would have been filed, but, no such thing happened, instead, the case in execution proceedings was contested by engaging an advocate and thus, an inference can be drawn against the petitioner that there is knowledge about all the proceedings and deliberately, this petition was filed by taking ground of ill-health and cause for the delay without filing medical certificates to make believe the cause. Thus, with such observations, the petition was dismissed. Aggrieved by the said order, C.R.P.No.681 of 2019 was filed.
4. In the grounds in C.R.P.No.681 of 2019, it is urged that the trial Court is expected to be a bit liberal while considering petition to condone delay in filing petition to set aside the ex parte decree or else, there is every possibility of passing the decrees based on misrepresentations of the plaintiffs at their whims and that the Court below ought to have believed the reasons stated by the petitioner. It is also stated by the revision petitioner that due to ignorance and innocence, the petition to set aside the ex parte decree was not filed within time, but he has a good case in the suit. It is also mentioned in the affidavit in I.A.No.1 of 2019 in C.R.P.No.681 of 2019 at paragraph No.5 that as the petitioner was not properly advised, he could not file the prescriptions issued by various doctors at Simhapuri Hospitals, Nellore and Vijaya Heart Foundation, Chennai, before the Court below, 4 BSB, J C.R.P.Nos.681 & 683 of 2019 but, the same have been filed along with the revision in C.R.P.No.681 of 2019. It is also contended that the Court below ought to have allowed the petition by condoning the delay on heavy conditions.
5. For the purpose of condoning the delay, irrespective of its length, the petitioner has to establish sufficient cause for the delay. According to the petitioner, he was prevented by his ill-health for which he took treatment as contended. Admittedly, he has not filed documentary proof, which he filed now in C.R.P.No.681 of 2019, before the Court below to substantiate his case. As such, there was no occasion for the Court below to examine the documents and see whether sufficient cause has been established. As such, the matter can be remanded to the Court below to pass orders afresh taking the documentary evidence into consideration. The contention of the revision petitioner that this type of petitions can be liberally allowed on imposing heavy terms, such as, deposit of certain amount of suit claim, suit costs etc., can be examined by the Court below while disposing of the petition on merits. However, to compensate the inconvenience caused to the respondent/plaintiff, for the lapse on the part of the petitioner/defendant, reasonable terms can be imposed even in these revision petitions.
6. Accordingly, C.R.P.No.681 of 2019 is allowed setting aside the order, dated 14.02.2019, passed in I.A.No.190 of 2018 in O.S.No.18 of 2017 with a direction to the trial Court to receive the documentary evidence filed by the revision petitioner, if they are filed before it in original, and pass orders afresh, subject to the following conditions:- 5
BSB, J C.R.P.Nos.681 & 683 of 2019 Within ten (10) days from the date of receipt of a copy of this order, the revision petitioner shall (i) pay the respondent/plaintiff a sum of Rs.2,000/- as costs in C.R.P.No.681 of 2019; and, (ii) file the original documents of medical prescriptions, which are filed in C.R.P.No.681 of 2019, before the trial Court.
It is further made clear that failing to fulfill any of the above two conditions would render the C.R.P.No.681 of 2019 in dismissal.
7. In view of the orders passed in C.R.P.No.681 of 2019 and in the event petition to condone delay filed under Order IX Rule 13 of the Code is allowed, the execution proceedings may become infructuous. Therefore, for the present, C.R.P.No.683 of 2019 is closed granting liberty to the revision petitioner to get it restored, if order in the delay condonation petition goes against him.
Miscellaneous petitions pending, if any, shall stand closed.
________________ B.S BHANUMATHI, J 18th April, 2022 RAR