A GOVLNDALAH Vs. V VENKATAMMA DIED

JUDGEMENT

(1.) This revision petition is filed by the original defendant No.3 challenging the order of the District Munsif, Sathyavedu dated 7-2-1994 passed on his file in I.A. No.189 of 1993 in O.S. No.32 of 1989. By the impugned order, the District Munsif refused to set aside the ex parte decree passed against the defendant No.3. The learned advocate appearing for the petitioner strenuously contended that the impugned order refusing to set aside the ex parte decree is illegal and without jurisdiction. On the other hand, the learned Counsel appearing for the 1st Respondent (Plaintiff) supported the impugned judgment and order.

(2.) In order to appreciate the rival contentions on both sides, it is necessary to note a few facts of the case: The 1st respondent (plaintiff) filed a suit against the 3rd defendant directing the 1st respondent and the 3rd defendant, if necessary, to execute and register a regular deed of reconveyance in favour of the plaintiff in respect of the suit schedule property as per the terms of the reconveyance agreement dated 28-3-1977. Further, the plaintiff also prayed for a direction directing the defendants to deliver possession of the plaint schedule property to the plaintiff after receiving the consideration of Rs.3,000/- as agreed upon under the reconveyance agreement and he also prayed for costs. On 22-2-1991, all the three defendants were set ex parte and ultimately after taking the ex parte evidence of the plaintiff as P.W.I and by marking Exs.A-1 to A-11, the suit was decreed ex parte against all the defendants on 4-3-1991. However, defendant Nos.l and 2 filed an application to set aside the ex parte decree in LA. No.104 of 1991 and the said LA. has been allowed by an order dated 5-8-1991 and thereafter defendant Nos. 1 and 2 have filed written statements and the suit was posted for trial on 11-5-1992. Thereafter the present petitioner (Defendant No.3) filed the present LA. No.189 of 1993 for setting aside the ex parte decree passed against him under Order 9 Rule 7 r/w 151CPC. The petitioner stated in his affidavit that after the receipt of the summons, he engaged an advocate by name Sri K.Subbarama Raju residingat Puttur to contest the suit filed before the District Munsif, Sathyavedu and he gave all the papers to him. His advocate told him that the petitioner could come to him only on the receipt of a letter addressed by him to the petitioner for evidence and the petitioner need nothave to worry about the matter. Thereafter, the petitioner did not receive any letter from his advocate. After waiting for 3 years, on 12-9-1993 he went to his advocate at Puttur to find out as to what happened to the suit. He was informed by the present advocate that due to me non-filing of the statement by the defendants, all the defendants were set ex parte by an order dated 22-2-1991 and later, on the application filed by the defendant Nos.1 and 2 in LA. No.104 of 1991, the said ex parte decree was set aside on 5-8-1991 and the suit has been restored to file. The petitioner further stated in his affidavit that his present advocate stated that he would file a written statement in the above suit to show the biona fides on his part without any further delay. He stated that no evidence was recorded by the other side and it was posted for trial. Under these circumstances, the petitioner submitted that he could not be present when he was placed ex parte on 22-2-1991 and when an ex parte decree was passed on 4-3-1991 and under these circumstances, he prayed for setting aside the ex parte order. Along with the present I.A., he also filed his written statement. It is submitted in the said I.A. that if the ex parte decree was not set aside, he would be put to great hardship and loss. The 1st respondent (the original plaintiff) filed a counter to the LA. denying the allegations made in the affidavit filed in support of the LA. and accordingly prayed for rejection of the said LA. On that basis, the Court below formulated a point for consideration to the effect 'whether there are sufficient grounds to set aside the ex parte order passed against the 3rd defendant in the interest of justice'. On hearing both sides, the Court below rejected the said Interlocutory Application. It is in these circumstances, it is the 3rd defendant who has preferred this revision petition against the said impugned order.

(3.) The learned Counsel for the petitioner strenuously contended that the petitioner has made out a sufficient cause for his non-appearance on 22-2-1991 when a consequent ex parte decree was passed. The Court below was in error in rejecting the LA. by passing the impugned order. The learned Counsel for the petitioner submitted that in the instant case, the petitioner resides in a village byname Kannavaram. He is an illiterate agriculturist. The Court is situated at a place called Sathyavedu and he had engaged a counsel by name Sri K.Subbarama Raju, who resides at Puttur. Since his advocate at Puttur told him that the petitioner could come to him only when he received a letter from the said advocate, at the time of evidence. He waited for 3 years and thereafter, he met his advocate to find out as to what happened to the suit and ultimately found that the exparte decree was passed against him. Even though the ex parte decree was passed against the defendants 1 and 2 and, but the same was set aside on 5-8-1991, as a result, the ex parte decree has continued against the petitioner, as no application has been filed on his behalf, as he was not aware of the ex parte decree passed. He submitted that having regard to these circumstances, the petitioner has made out a sufficient cause for setting aside the ex parte order and decree, by condoning the delay. He also submitted that at any rate, the ex parte decree even as against the present petitioner should have been set aside, under 1st proviso to Order 9 Rule 13 C.F .C. in view of the fact that the ex parte decree against the defendant Nos.1 and 2 was not severable from the ex parte decree passed against the present petitioner.