VELAVALA SUBBAYYA Vs. GAZULA BAPAYYA

JUDGEMENT

(1.) We are of opinion that the order of the lower Court is, on the face of it, unjustifiable and could not be supported. This appeal arises out of an application to sat aside an ex parte decree passed on 13th July 1948 by the Subordinate Judge, Tenali, in O. S. No. 69 of 1917 on his file. The appellant here was defendant 1 before the lower Court in which the suit was filed on 9th October 1917. It is unnecessary for us to consider the stages or the progress of the litigation between that date and 11th July 1918. On the 11th respondentplaintiff asked for an adjournment of the suit by means of a written application. The appellant-defendant not only did not demur to the adjournment, but consented to have the adjournment as prayed for by the plaintiff. When that application came up on 12th July 1948, the learned Subordinate Judge found no sufficient reason for granting the postponements asked for and the same was rejected. In the meanwhile on 12th July 1948, the appellant wrote a letter and sent it through P. W. 3 to his counsel in Tenali to the effect that on account of his father's Sradha ceremony he could not attend Court on 13th July 1948 and prayed that an adjournment of two days may be grant-ed. The counsel accordingly filed a written application and the same came on for hearing on the 13th itself apparently earlier in the day when the learned Judge would be disposing of miscellaneous application. At that time the plaintiff's counsel did not oppose request of the defendant for the postponement and must have agreed to the postponement. Despite the agreement of the parties the learned Subordinate Judge did not find it just to grant the adjournment and rejected that application as well. Probably a little later in the date, nearly an hour later, or more or less about that time, the suit was called on for hearing and since the defendant or his witnesses were absent the suit was decreed ex parte.

(2.) At about 1 P. M. the appellant reached Tenali and proceeded to his counsel and on the same date itself filed an application for setting aside the ex parte decree, whose rejection caused the above appeal.

(3.) The learned Judge found that the evidence on behalf of the appellant, namely, that of himself, examined as P. W. 1, that his Purohit P. W. 2, and that of the carrier of the letter P. W. 3 cannot be accepted. The learned Subordinate Judge was impressed with the testimony of R. W. 1 and accepting this solitary evidence of R. W. 1 and rejecting that of the prosecution witnesses, found that there was no justifiable or sufficient cause for the absence of the defendant when the case was called on for hearing and therefore refused to set aside the ex parte decree. The learned Judge has given various reasons why he did not accept the testimony of P W. 1. He says, if as a matter of fact, P. W. 1 had his father's ceremony on the 13th, the definite date should have been mentioned in the letter and moreover the ceremony itself would not have been taken more than a few minutes, and therefore, it would have been possible for him to attend Court in time. The learned Judge did not believe the evidence of P. W. 2 or that of P. W. 3. We are not satisfied that the action of the learned Judge in summarily rejecting the evidence of these witnesses would be justified. Mr. P.V. Chalapathi Rao, for the respondent, invites our attention to Order 9, Rule 13 and contends that "sufficient cause" within the meaning of that rule has not been proved to the satisfaction of the Court and as the trial Court did not derive satisfaction, this Court could not in appeal interfere. He also argued that the facts and circumstances indicate that there was misconduct or gross negligence on the part of the defendant and that was the reason why he did not attend Court on 13th July 1948. The observations of Sir Walter Sails Schwabe C. J. in Arunachala, Aiyar v. Sub-baramiah, 46 Mad. 60 : (A. I. R. (10) 1923 Mad. 63) were also relied upon.