BATHINI SAMBAIAH Vs. JULURU NARAYAN

JUDGEMENT

(1.) This Civil Revision Petition is filed against the order of the I Additional Senior Civil Judge, Warangal made in I. A. No. 840/2001 in O. S. No. 4/1996 dated 08-10-2001.

(2.) The application filed by the petitioner under Order 9 Rule. 13, Code of Civil Procedure to set aside the ex parte decree dated 16-11-1999 is allowed by the learned Senior Civil Judge subject to the condition that the petitioner deposits the entire suit costs on or before 30-10-2001 or else the petition stands dismissed. There was a delay of 346 days in filing the application under Order 9 Rule 13 CPC. The petitioner filed an application under Section 5 of the Indian Limitation Act in I.A.No. 920/2000 to condone the delay of 346 days in filing the application under Order Rule 13 C. P. C. to set aside the ex parte decree. The Court below while allowing the said I. A. No.920/2000 condoned the delay of 346 days on a condition of depositing 1/4th of the decretal amount including the suit costs by the petitioner/defendant. Questioning the said order, the petitioner filed Civil Revision Petition No. 2674/2001 and this Court while allowing the said Revision Petition on 28-06-2001 held that the application filed to set aside the ex parte decree shall be considered on different and distinct grounds. In the said application, the question to be considered while condoning the delay is whether there was any reasonable cause or excuse in not filing the application within 30 days of the date of ex parte decree under Section 5 of the Limitation Act. But whereas the reasons to consider to set aside ex parte decree are different with those of the application to consider the application to condone the delay. The trial Court while considering the application under Order 9 Rule 13 C.P.C. held that when the suit was posted for cross-examination of the plaintiff by the defendant neither the defendant nor his Counsel appeared before the Court. The plaintiff examined himself as P. W. 1 in-chief on 02-11-1999 and at the request of the Counsel for the defendant cross-examination was deferred and it was adjourned to 11-11-1999 and again on 11-11-1999 the Counsel did not represent on the ground that he was not doing well, the suit was adjourned to 15-11-1999 for cross-examination of P.W. 1. On 15-11-1999, the counsel appearing for the defendant reported no instructions. In view of the said representation, the defendant called absent and he was set ex parte and the suit was adjourned for 16-11-1999 for consideration. When the case was called on 16-11-1999, none appeared on behalf of the defendant and there was no representation on his behalf, hence, the Court below passed ex parte decree after taking into consideration the entire material papers available on record. The trial Court held that the defendant failed to establish sufficient cause, which prevented him from appearing either to seek adjournment or seek instructions from his client, but still inclined to set aside the ex parte decree subject to the condition of payment of entire suit costs to test bona fides of the petitioner/ defendant.

(3.) The trial Court taking into the past conduct of the petitioner and the facts and circumstances of the case, considered the contentions of the petitioner and in order to render substantial justice allowed the application filed under Order 9 Rule 13 C.P.C. subject to payment of costs of the suit, which cannot be said as unreasonable or onerous term. The trial Court is empowered to make such an order while setting aside the ex parte decree imposing such a term of depositing of the costs will be subject to final orders that may be passed in the original suit. Costs were directed to be paid into the Court alone. As the Court below earlier imposed a condition of depositing 1/4th of the suit costs (sic.amount) while considering the application to condone the delay under Section 5 of the Indian Limitation Act, the said order was set aside observing that such a condition cannot be imposed while considering the application under Section 5 of Indian Limitation Act. As the suit is of the year 1996, imposing such a condition to deposit the suit costs, cannot be said that it is onerous or a term without jurisdiction. However, the petitioner deposited the suit costs as directed by the Court below and the question has become only an academic one.