RAMSETTY MALLIAH Vs. MITTA LAXMINARASIAH

JUDGEMENT

(1.) Eight plaintiffs, father and sons, filed O.S. No. 4 of 1964 against five defendants praying for a decree for Rs. 1,000 and also a decree for eviction in respect of certain lands admeasuring 115 acres 38 guntas situated at Bogaram Village, Medichal Taluk. The father of defendants 2 and 3 is the brother of the 1st defendant, Ramasetty Mallaiah. The 4th defendant, Ramasetty Bagiah, is another brother of Ramsetty Malliah. The 5th defendant, Alwale Venkaiah, is the son-in-law of the 1st defendant. It is the plaintiff's case that the defendants were the tenants in respect of the suit lands since prior to 1954. It is further alleged that the defendants were not paying the rents and fell in arrears and therefore it was prayed that a decree for arrears of rent should be passed. It was prayed that a decree for possession after evicting the defendants should be passed. The 1st defendant filed a written statement pleading that the suit lands are the ancestral lands of the defendants, who are the absolute owners and pattadars in actual possession since their ancestors' time till the date of suit. They denied that they are the tenants. They pleaded that they have been in possession for over 50 years. For the defendants, three Advocates appeared, one of whom is Sri P.Suryanarayana Reddy and the other two are R.W. 1 and his brother. On 2nd August, 1964, Mr. P. Viswanatham, an Advocate for the plaintiffs, was murdered and two sons of the 1st defendant and his brother, the 4th defendant and his son-in-law, the 5th defendants were the accused in the murder case. While so, on 5th September, 1964, the defendants were declared ex parte and the suit was posted for trial to 21st September, 1964. On that date, the suit was decreed ex parte. Then the 1st defendant filed I.A. No. 432 of 1964 under Order 9, rule 13, Civil Procedure Code to set aside the ex parte decree passed against him. The ex parte decree which was passed, is as follows :-

(2.) From this, it is clear that it is a joint decree for possession and money against all the five defendants. In the affidavit filed in support of the application to set aside the ex parte decree, the 1st defendant stated that two or his sons, Buchaiah, Narasiah and his younger brother, Bhagaiah and his son Sattaiah and the son-in-law of the 1st defendant, Venkaiah, were arrested in connection with the murder of the Advocate, Mr. P. Viswanatham. He alleged that Mr. P. Suryanarayana Reddy declined to appear for him in his suit and therefore he engaged Mr. M. Satyanarayana Reddy to appear for him. Thereafter, on enquiry, he came to know that the suit was decreed ex parte for default of the 1st defendant's appearance and other defendants' and of their Counsel. This affidavit was sworn to on 9th October, 1964. That means, according to the 1st defendant, he knew about the ex parte decree on 8th October, 1964. Then he proceeded to state :- " I submit that my sons and son-in-law who arc defendants in the suit are involved in a murder case and are remanded to custody. I am the only male member left out it. the house and my grand children are all laid up with fever ar.d I had to attend on them. Mr. P.Suryanarayana Reddy, my Counsel who voluntarily refused to appear for me also refused to give his consent to engage another Counsel ar.d I could not er.gage ar.y other Counsel. He had also r.ot indicated to me the date of hearing of the suit so that I could be present and make representation to this Hor ourable Court, I am also busy in looking to the defence of my sons and son-in-law who are involved in the murder case.

(3.) On this, the Munsif-Magistrate, Hyderabad East and North, recorded evidence and dismissed the application, Though he did not give a definite finding whether there was sufficient cause or not for the defendants' absence when the suit was called on for hearing, a perusal of his order shows that he was not prepared to believe that evidence of the 1st defendant and that of his witness, P.W. 2. He further observed that the 1st defendant's failure to receive information from his attorney is not a sufficient cause within the meaning of Order 9, rule 13, Civil Procedure Code, for setting aside the ex parte decree. For this, he quoted the decision reported in Gopalakrishna v. Chintahara Mazumdar, A.I.R. 1941 Cal. 254. He also commented on the fact that the petitioner could have appeared in Court and taken note of the date of hearing and that no plausible explanation had come forward from the petitioner as to why he could not attend the Court, when he could attend twice the office of his Advocate, Sri P. Suryanarayana Reddy. The Munsif-Magistrate wound up by saying that there is a clear indication of misconduct or gross negligence on the part of the petitioner and has indifference in conducting the case. These are really words which do not convey any definite meaning. The Munsif-Magistrate does not seem to have borne in mind that two sons of the petitioner and his son-in-law and his brother were accused in a murder case and the petitioner was attending to their defence in that case. It does not require a lot of imaginative power to appreciate how perturbed and unsettled the petitioner would have been under these circumstances. The Munsif- Magistrate dealt with the matter in a mechanical way. This order was taken in appeal before the First Additional Chief Judge, City Civil Court, Hyderabd, who confirmed the order of the Munsif-Magistrate.