M RAMAMURTHY NALGONDA Vs. GUNDALA LAKSHMINARAYANA

JUDGEMENT

(1.) The appellant is the petitioner-1st defendant in I.A.No.415 of 2001 in O.S.No.1529 of 1998 on the file of the V Senior Civil Judge, City Civil Court at Hyderabad.

(2.) The appellant had filed the application referred to supra to set aside the ex parte decree passed on 05-02-2001 on the ground that he was not served with summons in the suit and the respondent-plaintiff in the suit managed to get false endorsement on the summons and obtained ex parte judgment and decree. It was also stated that the appellant was suffering from heart ailment, hypertension and other deceases and had undergone treatment at Huzurnagar during the months of January and February 2001 and was advised bed rest. Hence, he could not attend the Court on the date when the ex parte decree was passed against him.

(3.) The respondent filed a counter and resisted the same stating that the summons were sent to the address given by the appellant in the promissory note and received the summons sent through post but refused to receive those summons. It was also stated that it can be seen from the endorsement of the process server that the appellant deliberately avoided to receive the Court summons and after filing of the E.P. for realization of the amount, the appellant had thought of filing this application to set aside the ex parte decree. The learned V Senior Civil Judge, City Civil Court, Hyderabad by an order dated 12-08-2002 had arrived at a conclusion that the grounds raised by the appellant cannot be believed and had ultimately dismissed the application. Aggrieved by the same, the present C.M.A. is filed. Sri Jalli Kanakaiah, the learned counsel representing the appellant had taken me through para Nos.2 to 6 of the affidavit filed in support of the application to set aside the ex parte decree before the V Additional Senior Civil Judge, City Civil Court, Hyderabad. He had also drawn my attention to the respective pleadings of the parties. The learned counsel also had drawn my attention to the written statement and had submitted that there is valid defence to be gone into at the time of trial. The learned counsel also contended that both the grounds are sustainable grounds or in the alternative, at any rate, in view of the medical certificate produced by the appellant in this regard, it can be taken that the appellant was suffering with the ailments specified in the affidavit filed in support of the application to set aside ex parte decree. The learned counsel also further had drawn my attention to the order passed in C.M.P.NO.21289 of 2002 and stated that the entire suits costs have already had been deposited. In the light of the facts and circumstances of the case, the ex parte decree passed in the suit is liable to be set aside and an opportunity to be given to the appellant to contest the matter. Per contra, Sri Suri the learned counsel representing the respondent-plaintiff had drawn my attention to the impugned order and had submitted that the reasons recorded are convincing reasons and the learned V Senior Civil Judge, City Civil Court had negatived both the grounds while dismissing the application and hence, there is no sufficient cause or valid reasons to set aside the ex parte decree. The learned counsel also had made elaborate submissions about the conduct of the party in making false allegations. The learned counsel also, in particular, had drawn my attention to the last portion of the impugned order and had pointed out that the learned V Senior Civil Judge, City Civil Court, Hyderabad had disbelieved the second reason also taking into consideration the conduct of the party and hence, there is no justification in setting aside the ex parte decree made in O.S.No.1529 of 1998 on the file of the V Senior Civil Judge, City Civil Court, Hyderabad. Heard the counsel representing the respective parties. Order 9 Rule 13 of the Code of Civil Procedure reads as here under: Setting aside decree ex parte against defendant.