Andhra HC (Pre-Telangana)
Budati Rajendra Prasad vs Kolamudi Ramachandra Rao on 13 October, 1997
Equivalent citations: 1997(6)ALT819
ORDER B.K. Somasekhara, J.
1. Respondent has been served. No representation. Heard on merits. The order of the learned Subordinate Judge, Chirala in C.M.A.No. 15/96 dated 22-2-1997 is challenged. The petitioner is the defendant in O.S. 228/94. The respondent is the plaintiff. The suit was decreed ex parte on 27-1-1995. The petitioner herein filed I.A. 161/95 to set aside the ex parte decree. It was dismissed on 14-8-1996 by the learned Principal District Munsif, Chirala. It was taken in appeal before the learned Subordinate Judge in C.M.A. 15/96. The appeal was allowed setting aside the order of the learned District Munsif and allowing the application with a condition that the petitioner should deposit half of the suit amount within 15 days of the date of the order. Aggrieved by that, the revision is filed.
2. The order of the learned Subordinate Judge is perverse in addition to being totally illegal. The ground on which the ex parte decree was challenged was that the petitioner was suffering from typhoid from 24-1-1995 and could not attend the Court on 27-1-1995 when the case was called for hearing. The learned Munsif did not accept it. The learned Subordinate Judge has also stated that the petitioner did not produce any medical evidence in proof of his illness. That was the basis on which a finding ought to have been given, whether the petitioner was prevented from attending the Court, for several reasons, when the case was called for hearing. Without adverting to such a ground, the appeal is allowed by imposing a condition that half of the decree amount should be paid. This Court is afraid whether the learned Subordinate Judge knows the fundamentals in law of dealing with ex parte matters under Order 9, Rule 13 C.P.C. Therefore, there is need to remind to all such officers the real parametres of such a provision. In the luxury, a repetition has become inevitable and to read the provision:
"Order IX Rule 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:
Provided further that 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"
No explanation is necessary. The provision is very simple. The language is expressive. The grounds on which an ex parte decree can be set aside are three in number:
(i) The summons were not duly served on the party;
(ii) The party suffering the ex parte decree was prevented by any sufficient cause from appearing when the suit was called on for hearing;
(iii) The ex parte decree will be set aside against such a person 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.
No other condition is contemplated or can be imposed. The term to be imposed has been with reference to only costs and not to the suit amount. The learned Subordinate Judge, in utter violation of the provisions, has imposed term to recover 50% of the decretal amount. The order deserves to be set aside. But the matter still remains to be decided - whether the ex parte decree can be set aside under the circumstances. No evidence was produced. The question is whether an opportunity was given to the defendant to produce the evidence regarding the ground of illness. Therefore, the matter has to be remanded back to the learned District Munsif to hold enquiry into the ground of application to set aside the ex parte decree and pass appropriate orders.
3. C.R.P. is allowed and the orders of the learned Subordinate Judge and the learned District Munsif are set aside. The matter is remanded back to the learned Principal District Munsif, Chirala to dispose of the application in accordance with law after giving opportunity to the petitioner and respondent to produce evidence in respect of all the controversies. No costs.