PASINPILLI KHADESWAR RAO Vs. PASINPILLI KRISHNA RAO

JUDGEMENT

(1.) This revision has been filed against the judgment and order dated 27.11.1999 passed by the learned Addl. District Judge, Jeypore, confirming the order dated 29.9.1997 passed by the learned Civil Judge (Senior Division), Jeypore, rejecting the application filed by defendant No. 1 under Order 9, Rule 13, Civil Procedure Code (for short, 'CPC').

(2.) The petitioner is the defendant No. 1 in Title Suit No. 66 of 1992. The said suit was posted to 6.4.1995 for hearing. On the said date a petition was filed for adjournment on the ground of illness of the petitioner and some other grounds. But the same was rejected and the petitioner was examined on that day in part. Thereafter the suit was posted to 10-4-1995 but due to illness of the petitioner he was not able to move till 2-5-199J5. On 3-5-1995 he was informed that the suit was decreed in his absence. Therefore, an application was filed under Order 9, Rule 13, CPC to set aside the ex parte decree passed against him. An objection was filed by the plaintiff to the petition filed under Order 9, Rule 13, CPC denying the allegation of illness. The petitioner examined himself as P.W.1. In his evidence he stated that on 6.4.1995 he had sought for adjournment on the ground of illness but the same was rejected and he was examined in part. Thereafter the suit was posted to 10.4.1995 and to subsequent dates on which he could not attend the Court as he was suffering from blood pressure and dysentery. On 24.4.1995 his application for grant of adjournment was rejected and the evidence from his side was closed. Thereafter the decree was passed. He has also stated in his evidence that he had got himself examined by a Doctor who advised him to take rest and he had filed 3 medical certificates on each date of hearing of the case. However, the Trial Court rejected the application on the ground that no ex parte decree had been passed against the petitioner and therefore, the application under Order 9, Rule 13, CPC was not maintainable and it was open for the petitioner to file an appeal against the decree passed in the suit. The petitioner carried an appeal against the said order before the learned Additional District Judge, Jeypore, who dismissed the same on the very same grounds. Learned Appellate Court further held that since the defendant had been examined in part, the Court proceeded under Explanation to Order 17, Rule 2, CPC and therefore, no illegality has been committed by the Court below.

(3.) Learned counsel for petitioner submits that in absence of the defendant-petitioner the Court below should have proceeded to dispose of the suit in one of the modes provided under Order 9 and could not have disposed of the suit on merits.