CH SUDHAKAR Vs. T S R ANJANEYULU

JUDGEMENT

(1.) These two civil revision petitions are directed against the order, dated 15-9-2005 made in I.A.No.775 of 2004 in O.S.No.89 of 1998 on the file of III Additional District Judge, Warangal. As both the revisions are interrelated, they are taken up together for disposal by this common order.

(2.) For the sake of convenience, the parties will be referred to as arrayed in the Court below.

(3.) The petitioner in C.R.P. No.5917 of 2005 is the plaintiff, who instituted O.S. No.89 of 1998 for recovery of money based on a promissory note alleged to have been executed on 1-8-1997. The defendant filed written statement contending that he did not execute the promissory note and took the plea that the plaintiff is a professional money-lender, and as he does not have the required licence, the suit itself is not maintainable. The issues were settled, the plaintiffs evidence was over on 2-7-2004 and the suit was posted for defendant's evidence on 6-7-2004. On that day, as the defendant was absent and also no representation was made on his behalf, the Court below, taking a serious view of the matter, set the defendant ex parte and posted it on 8-7-2004 for judgment. On 8-7-2004, having come to know that the defendant was set ex parte and the suit was posted for judgment, the junior advocate of the Counsel representing the defendant filed a petition under Order 9 Rule 7 C.P.C. narrating the various circumstances as to why the defendant was absent and requested the Court to set aside the ex parte order. However, the Court below dismissed the application by its docket order and passed an ex parte decree on 8-7-2004 as prayed for. The defendant, after coming to know the fact that the suit was decreed, filed I.A.No.775 of 2004 narrating again the various circumstances as to why he was absent on 6-7-2004 and the junior Counsel filed an application on that day, etc., and requested the Court to set aside the ex parte decree dated 8-7-2004. A detailed counter-affidavit has been filed by the plaintiff stating that it is not an ex parte decree, but a decree on merits, as such, the application filed by the defendant under Order 9 Rule 13 C.P.C. is misconceived. It is further contended in the counter that the defendant lacks bona fides in filing the application. Considering the rival contentions advanced by both the Counsel, the Court below, by its order, dated 15-9-2005 while negativing the contention advanced by the learned Counsel for the plaintiff that it is a decree on merits gave a categorical finding that it is an ex parte decree and the petition filed under Order 9 Rule 13 C.P.C. is maintainable and allowed LA. No.775 of 2004 on condition that the defendant deposits half of the decretal amount. Aggrieved by the said order, the plaintiff preferred C.R.P. No.5917 of 2005 as stated supra questioning the validity of the order as to whether the decree dated 8-7-2004 is an ex parte decree or a decree on merits, whereas the defendant filed C.R.P. No.5039 of 2005 stating that the condition imposed by the Court below is onerous.