THOTA NAGESWARA RAO Vs. GOLLA VENKATA NARASIMHARAO

JUDGEMENT

(1.) Heard Sri K.V.Simhadri, counsel representing the appellant and Sri A.Sudarshan Reddy, counsel representing the respondent. This Civil Miscellaneous Appeal is filed against the order dated 18-7-2002 made in I.A.No.8 of 2002 in O.S.No.144 of 2000 on the file of the Additional Senior Civil Judge, Narsaraopet. The said application was filed under Order 9 Rule 13 read with Section 151 C.P.C., to set aside the ex parte decree dated 28-6-2001. The learned Additional Senior Civil Judge, Narsaraopet had dismissed the said application with costs by an order dated 18-7-2002 and aggrieved by the same, the present civil miscellaneous appeal is filed. Sri K.V.Simhadri, learned counsel representing the appellant had made the following submissions: The learned counsel at the out set had brought to my notice that in C.M.P.No.2452 of 2002 in C.M.A.No.3715 of 2002 on 30-1-2003, this Court granted interim stay on condition of the petitioner depositing suit costs within a period of two weeks and the said order was duly complied with. The learned counsel further submitted that the absence of appellant is bonafide on the date when the matter was posted on 21-6-2001 and also immediately thereafter the matter was posted for ex parte evidence on 28-6-2001 and on both the dates the appellant was suffering with fever and cold. The learned counsel also submitted that the learned Additional Senior Civil Judge, Narsaraopet had unfortunately penalized the appellant for his previous negligence.The learned counsel also contended that having permitted the appellant to file the written statement on 28-6-2002 so also payment of costs to the respondent's counsel, the dismissal of the application on unsustainable grounds cannot be sustained.The learned counsel also had drawn my attention to an order of this Court made in C.R.P.No.2697 of 2002 dated 25-6-2002. The learned counsel also had taken me through the impugned order meticulously and had submitted that in the light of the convincing explanation given the learned Additional Senior Civil Judge, Narsaraopet should have given an opportunity to the appellant to contest the matter and should have decided the matter on merits.

(2.) Sri Sudarshan Reddy, the counsel representing the respondents had explained the past conduct of the respondent in detail and had contended that deliberately and wilfully the appellant had been preventing the Court from passing a decree. The learned counsel also submitted that it is gross abuse of process of Court. The learned counsel also pointed out that this is a simple suit for recovery of money and the appellant had been adopting delaying tactics only with a view to harass and cause loss to the respondent. While concluding, the learned counsel also submitted that in the event of this Court proposing to give an opportunity to the appellant to contest the matter, it is just and necessary that a direction be issued to the learned Additional Senior Civil Judge, Narsaraopet to dispose of the suit forthwith at the earliest possible time. Heard both the counsel. As already stated supra, the present civil miscellaneous appeal is filed under Order 43 Rule 1 of the Code of Civil Procedure (herein after referred to as "Code" for the purpose of convenience) aggrieved by the dismissal of an application filed by the appellant under Order 9 Rule 13 read with Section 151 of the Code to set aside the ex parte decree dated 28-6-2001 made in O.S.No.144 of 2000 on the file of the Additional Senior Civil Judge, Narsaraopet. The application filed by the appellant I.A.No.8 of 2002 in O.S.No.144 of 2000 on the file of the Additional Senior Civil Judge, Narsaraopet, was allowed directing the appellant herein petitioner-defendant to deposit a sum of Rs.25,000/- being the half of the principle amount by 28-6-2002 failing which the petition stands dismissed.

(3.) Evidently aggrieved by the condition imposed, the appellant herein preferred C.R.P.No.2697 of 2002 to revise the said order dated 13-6-2002 made in I.A.No.8 of 2002 in o.S.No.144 of 2000 on the file of the Additional Senior Civil Judge, Narsaraopet and this Court by an order dated 25-6-2002 disposed of the C.R.P. which reads as hereunder: "The defendant in O.S.No.144 of 2000 which is pending on the file of the Additional Senior Civil Judge, Narsaraopet, is the petitioner herein.The respondent-plaintiff had filed O.S.No.144 of 2000.It was decreed ex parte. Thereafter, the defendant filed an application under Order IX Rule 13 C.P.C. for setting aside the ex parte decree by filing I.A.No.8 of 2002. While allowing the said I.A., the learned Judge directed that the defendant-petitioner should deposit a sum ofRs.25,000/-, being the half of the principal amount, by 28-6-2002, failing which the petition stands dismissed. The order passed by the learned Judge is totally erroneous. The learned Judge ought to have seen whether there were reasonable grounds for the defendant-petitioner herein to remain absent on the day of the effectual hearing. If he is satisfied on that ground, then only he has to allow the application. Therefore, the order inI.A.No.8 of 2002 dt.13-6-2002 is set aside and the learned Additional Senior Civil Judge, Narsaraopet is directed to decide I.A.No.8 of 2002 on its merits. On 28-6-2002 the petitioner herein is directed to file his written statement. This order is passed under Order VIII Rule 10 C.P.C. The C.R.P. is disposed of accordingly." As can be seen from the said order, on 28-6-2002 the appellant-petitioner is directed to file the written statement. It is brought to my notice that the written statement was filed.However, the learned Additional Senior Civil Judge, Narsaraopet had dismissed the application I.A.No.8 of 2002 in O.S.No.144 of 2000 by order dated 18-7-2002 observing that there is no satisfactory cause which prevented the appellant to attend the Court on the date of the ex parte decree and on the said ground the application was dismissed with costs.