KOMMINENI THIRUPATHAMMA Vs. KORITALA VEERAIAH

JUDGEMENT

(1.) The appellant herein filed a suit being O.S. No.41 of 1990 on the file of the Court of the District Munsiff, Parchur in Prakasam District for permanent injunction. The suit was decreed. The defendants filed an appeal before the Court of the Subordinate Judge, Chirala, which was subsequently transferred to the Court of the Subordinate Judge, Parchur. The said appeal being A.S. No. 16 of 1995 was allowed ex parte on 10.3.1997. Having come to know this, the appellant herein filed I.A. No.796 of 1997 under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC), to set aside the ex parte orders of the Appellate Court dated 10.3.1997. The learned appellate Judge rejected the said application. Aggrieved by the same, the present civil miscellaneous appeal is preferred.

(2.) Learned Counsel for the appellant, Ms. G. Jhansi, submits that in the affidavit filed accompanying the interlocutory application, the appellant has shown sufficient cause for not being able to prosecute the appeal, that the appellant was not negligent in pursuing the matter and that during the relevant time the appellant along with his son had been to Karnataka for taking up agriculture and, therefore, the lower appellate Court ought to have allowed the application. Secondly, she would contend that even if the order was passed by the Appellate Court on 10.3.1997 after hearing the defendants, who filed the said appeal, still the Appellate Court cannot reject an application by the respondents in the appeal to recall the order and re-hear the appeal. Lastly, she would contend that the learned Counsel engaged by the appellant reported no instructions on 5.3.1997 in such an event, a duty was cast on the lower appellate Court to issue notice to the parties.

(3.) Per contra, learned Counsel for the respondents (defendants in the suit), Sri G. Pedda Babu, submits that when once the order was passed by the lower appellate Court on merits, Order XLI Rule 17(2) CPC is not applicable. Unless and until the respondents in the appeal are able to show that there was no proper notice to them and also show sufficient cause, which prevented them from appearing on the date of hearing, the Court cannot pass any orders recalling the earlier orders passed after hearing the appellant.