DENA BANK HYDERABAD Vs. INDUSTRIAL TIMES

JUDGEMENT

(1.) On the ground that even though the matter has been adjourned from time to time for adducing evidence and as they have not co-operated, the learned Subordinate Judge has passed the following order:

(2.) This was stated to have been passed in the presence of Sri. Umeshtari, Sri B.K.Seshu, Advocate for the plaintiff and Sri K.R. Raman, Advocate for defendants. Immediately thereafter, an application has been filed under Order 9 Rule 9 CPC to set aside the order. That application was disposed of by the lower Court holding that the petitioner has to prefer an appeal against the order passed by the Court. We have perused the order. Original order, itself, ex-facie, has to be set aside, within one minute. It is a case where the suit has been filed on the basis of a promissory note, admittedly, executed by the party concerned. It is also a case where, at the subsequent stage, amendment petition has been filed and the same was allowed in part and that amendment order has been carried upto the Supreme Court. After the disposal by the Supreme Court and after finality about the amendment order, the suit has come up for further evidence. When the plaintiff was not ready, the learned Judge should have closed the evidence on behalf of the plaintiff and posted the matter for the defendents' evidence. In a case like this, the hasty action, as exhibited by the original authority in passing the order, clearly demonstrates that he has not applied his mind duly taking into account the provisions of the CPC. Where the matter has to be decided, ex parte or where the plaintiff's evidence was closed, when many options were available under the CFC, the option less injurious to the parties concerned, has to be taken into consideration and the extreme step of dismissing the suit, should not have been resorted to, normally, by the Court;. Even subsequently, when the matter has come up before another Judge who is also not in service now, even though, it was brought to his notice the decision reported in 1987 (1) ALT, page 80, he has dismissed the same. The observations of the Court in the reported decision mentioned supra, are as follows:

(3.) The nature of the case, the matter that has been posted after adjournments, the affidavit that has been filed by the advocate and the order that has been passed, clearly indicates that it is a case where Order 9 Rule 9 CPC has to be applied, and it is not a case where Order 17 Rule 2 CPC can be taken aid of and contend that an appeal ought to have been filed. It is a case where the plaintiff's and defendants' evidence is available and the issues are there. When the evidence of P.W.I and D.W. 1 was available, if he has disposed of the suit on the basis of that evidence available on record, definitely, we would have found that the party is not entitled to invoke Order 9 Rule 9 CPC. But, when he has not adopted that course and he has simply dismissed on the ground that it is an old suit without giving any reasons, we have to hold that it is an ex parte order, though it was passed in the presence of the Advocates concerned. The remedy that is available for the party in case of an order like the one that has been passed is the provision of Order 9 CPC. When the provision under which the application has been filed and the reason that has been given or the explanation that is offered can be accepted without any hesitation, the lower Court ought to have accepted the explanation and allowed the petition and directed both the parties to adduce evidence. But that course has not been adopted. Following the dicta laid down in 1987 (1) ALT page 80 extracted above, we hold that the reason that has been given by the Court for not setting aside the order is perverse. It can be said that it is not a legal order and has to be set aside. It is not the quantum of amount that has been involved in the suit that is to be taken into consideration at the time of considering the application under Order 9 CPC. It is the principle and the reason that has been given and the circumstances under which that order has been passed is the relevant consideration that is to be taken into consideration. If we fake that into consideration, as it is a suit on promissory note and the defendant was also examined apart from the evidence of P. W. 1, we feel that it is a case where it should have ben disposed of, on merits. Therefore, the order is set aside. The suit is restored and the lower Court is directed to dispose of the suit within six (6) months from the date of receipt of this order. If either party has not co-operated, the lower Court is directed to dispose of the matter on the available material evidence on record duly taking into consideration the issues that have been framed in the suit. The C.M.A. is allowed. No costs.