GOVERNMENT OF ANDHRA PRADESH Vs. BACTCHALA BALAIAH

JUDGEMENT

(1.) THE Revision and the C.M.A. arise out of the proceedings of Original Suit No. 124 of 1982. THE brief facts leading to the revision and the C.M.A. are as follows: THE plaintiff in the suit was a contractor. He entered into an agreement with defendants 1 and 2 who represent the State of Andhra Pradesh to do earth work over the embankment of Godavari South canal beyond lower Manair Dam. His tender was accepted and he completed the work as per the agreement. However, disputes arose between him and the defendants regarding the payment of the amounts for the work done by him. Both parties appointed defendants 3 to 5 as arbitrators to resolve the dispute. After due enquiry, defendants 3 to 5 passed an award on 15-8-1982 in favour of the contractor-plaintiff. Copies of the award were communicated to defendants 1 and 2 . But the Government did not pay the amount as per the award and hence the contract filed the suit in the Subordinate Judges Court, Ongole, to make the award a rule of Court. Defendants 1 and 2 did not file any petition to set aside the award in the Court under S.30, Arbitration Act. R.P.Notices were taken on the defendants 1 to 5 on 29-10-1982. Notices were served personally on defendants 1 to 5 . THE Government Pleader filed his memo of appearance on 29-10-1982. Notices were served personally on defendants 1 to 5 . THE Government Pleader filed his memo of appearance on 29-10-1982. THE suit was adjourned to 27-11-1982 for written statement. From that day it was adjourned from time to time for written statement till 27-1-1983. Though several adjournments were granted in between 27-11-1982 and 27-1-1983, written statement was not filed by the defendants. On 27-1-1983 the Government pleader requested the Court for further time for filing written statement. But the learned Subordinate Judge refused to grant further adjournment and set the defendants ex parte. THE suit was adjourned to 28-1-1983 for the plaintiffs evidence. On 28-1-1983 the plaintiff gave evidence as P.W.1 and the award was marked as Ex.A-1. THE learned Subordinate Judge on the basis of the evidence of P.W.1 and Ex.A-1 decreed the suit in the terms of the award. No petition was filed for setting aside the award under S.30. Arbitration Act. Hence the learned Subordinate Judge decreed the suit in terms of the award with costs as prayed for making the award the rule of the Court. THE learned Subordinate Judge also passed orders stating that there shall be no order for the payment of subsequent interest.

(2.) DEFENDANTS 1 and 2 in the suit filed I.A. No. 539 of 1983 under O.9 R.13.C.P.C. for setting aside the ex parte decree passed in O.S.No.214 of 1982 with a petition. I.A.No.538 of 1983 for condonation of delay of 9 days in presenting I.A.539 of 1983. As to why the delay in filing I.A.No.539 of 1983 was caused, the petitioners in I.A.No.538 of 1983 explained that they were informed of the ex parte decree dated 28-1-1983 by the Government Pleader, Ongole, as per his letter dated 31-1-1983 and hence they could not get instructions from the Government of Andhra Pradesh even up to 28-2-1983 and they could not file the petition I.A.No.539 of 1983 under O.9.R.13.C.P.C., within the prescribed time of 30 days and left with no other remedy they filed the petition I.A.No.538 of 1983 under S.5. Limitation Act, seeking for the condonation of delay, which according to them, was due to purely administrative reasons. This petition was opposed by the plaintiff.

(3.) THE learned Subordinate Judge did not accept the defendants explanation as to why the delay has been caused as the letter of the Government Pleader was not placed before the Court and it is not known whether the defendants or the Chief Engineer addressed the Government for necessary instructions. In support of his conclusion the learned Subordinate Judge relied upon the decision of the Supreme Court in Ramlal v. Rewa Coal Fields Ltd., AIR 1962 SC 361 and also the two decisions of this Court in R.D.O.v. T. Laxminarayanayar, AIR 1975 Andh Pra 109 and Spl.Dy Collector v.Nawath T Yar Jung. AIR 1973 Andh Pra 43. THE learned Subordinate Judge also took into consideration the ultimate result of the suit, which will be decreed against the defendants, as no petition was filed for setting aside the award within the period of limitation as provided under S.30 Arbitration Act, and the award would be ultimately made as a rule of Court under S.17. Arbitration Act, even if the delay is condoned and the ex parte decree is set aside and if the defendants are given an opportunity to contest the suit and the learned Subordinate Judge, therefore, took the view that no useful purpose would be served even if the delay is condoned. So holding he dismissed the petition I.A.No.538 of 1983 and consequently he dismissed I.A.No.539 of 1983 which was filed for setting aside the ex parte decree under O.9 R.13.C.P.C. THE learned Subordinate Judge also decreed the suit making the award rule of Court. Aggrieved with the orders in I.A.No.538 of 1982 and I.A.No.539/1983. C.R.P.No.2415 of 1983 and C.M.A.No.764 of 1983 respectively are filed. Even against the decree in O.S.No.214 of 1982 a revision is filed but it is unnumbered.