GURRAM ANJESWAR Vs. S. NAGALAXMI

JUDGEMENT

(1.) The petitioner in the revision was defendant in O.S.No.1438 of 2014 on the file of I Senior Civil Judge, City Civil Court, Hyderabad, which was a suit for recovery of money maintained against him by the revision respondent as sole plaintiff. There was an ex-parte decree dated 16.04.2015 passed against him from the Court summons of door locked and followed by substituted service through paper publication in Namaste Telangana daily of Karimnagar District Edition. I.A.No.794 of 2015 filed by defendant is to set aside the ex-parte decree saying he has no knowledge of the decree and within 30 days limitation period, he maintained the application having come to know and there was no circulation of the paper to his knowledge. The trial Court allowed the application vide order dated 10.12.2015 setting aside the ex-parte decree dated 16.04.2015 with the following conditions that of subject to deposit of half of the decretal amount on or before 28.01.2016 and failing which, the petition stands dismissed.

(2.) It is impugning the said condition while allowing the application to set aside the ex-parte decree the said partly succeeded petitioner maintained the revision. In support of his contention the counsel placed reliance on the Division Bench expression of this Court in Rajeswara Industries Vs. State Bank of Hyderabad, Karimnagar Branch, 1991 (2) ALT 365, where it was held from reading of Order 9 Rule 13 Civil P.C. that once it is clear that the Court shall make an order setting aside the decree if sufficient cause is established, upon such terms as to costs, payment into the Court or otherwise as it thinks fit. But the Court cannot, even before going into the merits of the application filed under Order 9 Rule 13 CPC, impose conditions upon defendants for depositing part or whole of the suit amount as a condition precedent for entertaining the application under Order 9 Rule 13 CPC, as rendered 50 years ago in Narayanan v. Chidambaram. In fact the expression speaks imposing of condition for numbering the application itself is uncalled for and it did not speak on imposing of condition while allowing the application is uncalled for. Thereby the decision has no application much less to say conditions cannot be imposed while allowing application under Order 9 Rule 13 CPC. The three Judge Bench of Apex Court in V.K. Industries and Others Vs. M.P. Electricity Board, Rampur, Jabalpur, (2002) 3 SCC 159 held that conditions can be imposed by the Court while setting aside the ex-parte decree under Order 9 Rule 13 CPC, however such condition should be reasonable and not harshly excessive. On facts of that case is a suit for recovery of Rs.3,84,455.44 with interest decreed ex-parte. Decree was set aside on the condition of defendants to deposit a sum of Rs.2,00,000.00 with the trial Court and to furnish a bank guarantee for remaining sum claimed in the suit and the conditions imposed held on facts, were onerous and unreasonable. Deposit of Rs.1,00,000.00 with trial Court, held, would be just and appropriate in the facts and circumstances of the case. A single Judge of this Court in Chekuri Malakondaiah and another v. State Bank of India, Kanigiri, rep. by its Branch Manager and Others, 2014 (1) ALT 186 observed referring to the expression in V.K. Industries supra that while setting aside the ex-parte decree conditions to be stipulated by the Court must be reasonable and not onerous and harsh or excessive as laid down therein. On facts in that case, the suit is for recovery of mortgage amounts filed by the Bank where ex-parte preliminary decree was passed and there was a direction to deposit the entire suit claim of Rs.3,70,763.00 with interest and the CMA filed was confirmed by the lower appellate Court and when revision maintained, the High Court modified the same with a direction to deposit 50% of the suit claim excluding interest. In fact the Apex Court in Tea Auction Limited v. Grace Hill Tea Industry and Another, AIR 2007 SC 67 observed particularly in Paras 24 and 25 referring in earlier Paras in this regard the expressions in G.P. Srivastava Vs. R.K. Raizada and Others, (2000) 3 SCC 54, Ramesh and Others Vs. Ratnakar Bank Limited, 2000 (10) SC 325 and Vijay Kumar Madan and Others Vs. R.N. Gupta Technical Education Society and Others, (2002) 5 SCC 30 observed power of Court to impose costs and put the defendant/applicant on terms is spelled out by several expressions from interpretation of upon such terms as the Court directs as to costs or otherwise and law is settled from the expression in Arjun Singh Vs. Mohindra Kumar way back in this regard and it is ultimately observed that the discretionary jurisdiction conferred on the Court while passing an order to set aside the ex-parte decree not only on the basis that defendant had been able to prove sufficient cause for his non-appearance on the date which decree passed, but also other attending facts and circumstances as to defendant should be put to terms and it is not denuded of its power of the Court to put the defendants in terms, it is however trite that such terms should not be unreasonable or harsh or excessive. It is therefrom observed in Paras 24 & 25 that while setting aside ex-parte decree conditions can be imposed, but such condition should not be unreasonable or harshly excessive and keeping in view peculiar facts and circumstance of the case of where suit is for recovery of Rs.37,26,498.00 with interest to be set aside, the Apex Court held of the opinion that interest of justice would be sub served if the defendant is directed to furnish security to the extent of Rs.5,00,000.00 and such security to be furnished is to the satisfaction of the trial Judge and such security other than deposit of amount in cash should be furnished within 12 weeks from that date. The above expressions clearly envisage that conditions can be imposed however it should not be onerous. Thus, each case depends on its own facts to decide as to what are the reasonable conditions that can be imposed either to pay any amount out of the suit decreed ex-parte and costs and interest or to furnish any security for any amount while paying or depositing any amount and the like.

(3.) Having regard to the above, this Court feels to sub serve the ends of justice while sitting against the impugned order of the lower Court imposing condition of deposit of 50% of the decretal amount even onerous on its face including from the single Judge expression of this Court where other than interest only for principal sum 50% ordered to be deposited, thereby to modify and reduce to ?rd of the decretal amount due with entire costs.