AVUTU VIJAYALAKSHMI Vs. SRI PUJITHA CHIT FUND

JUDGEMENT

(1.) the civil miscellaneous appeal is filed against the order and decree dt. 21-2-2002 in i.a. No. 643 of 2000 in o.s. No. 544 of 1999 on the file of the court of l-additional senior civil judge, vijayawada, dismissing the application filed under order 9 rule 13 of CPC seeking to set aside the ex parte decree.

(2.) Mr. V.V.N. Narayana Rao, the learned counsel for the appellants contended that firstly, the court below ought to have allowed the application filed by the appellants seeking to set aside the ex parte decree so as to enable them to file written statement and contest the main suit on merits. Secondly, the court below ought to have seen that the appellants have no knowledge about the pendency of suit and came to know of the same after publication of ep proceedings in the local newspaper. Thirdly, the court below ought to have seen that if the application filed by the appellants is allowed then no prejudice will be caused to the respondent and the impugned order is against the very spirit of order 19 rule 13 of CPC and it is contrary to the principles laid down by this court.

(3.) on the other hand, Mr. V.S.R. Anjaneyulu, the learned senior counsel for the respondent contended that the respondent filed o.s. No. 544 of 1999 on the file of the court of first additional senior civil judge, vijayawada, seeking recovery of Rs. 4,89,ooo/- from the appellants and pass a decree for a sum of Rs. 4,89,000/-. Defendants having been served with suit summons, engaged an Advocate and the suit was posted to 12-6-2000 for filing written statement. Since the appellants failed to file the written statement, time was granted for filing written statement upto 29-6-2000 on payment of costs of Rs. 75/-. On 29-6-2000, since the presiding officer of the court below was on leave, the suit was again adjourned to 6-7-2000. Even on that date, since the written statement was not filed and costs were not paid, the appellants were called absent and though the matter was passed over till 04.00 p.m., but there was no representation, the defendants were therefore set ex-parte and posted the suit to 18-7-2000 for plaintiff's evidence. From 18-7-2000 the suit was posted to 31 -7-2000 and again on that day the presiding officer of the court below was on leave, the suit was posted to 11-8-2000. After examining the representative of plaintiff-company the suit was decreed.