VELAVALA SUBBAYYA Vs. GAZULA BAPAYYA

JUDGEMENT

(1.) We are of opinion that the order of the lower court is, on the face of it, unjustifiable and could not be supported. This appeal arises out of an application to set aside an ex parte decree passed on 13 July, 1948 by the Subordinate Judge, Tenali, in O.S. No. 69 of 1947 on his file. The appellant here was the first defendant before the lower court in which the suit was filed on 9 October, 1947. It is unnecessary for us to consider the stages or the progress of the litigation between that date and 11 th July, 1948. On the 11 th respondent-plaintiff asked for an adjournment of the suit by means of a written application. The appellant-defendant, not only did not demur to the adjournment but consented to have the adjournment as prayed for by the plaintiff. When that application came up on 12 July, 1948, the learned Subordinate Judge found no sufficient reason for granting the postponement asked for and the same was rejected. In the meanwhile on 12 July, 1948, the appellant wrote a letter and sent it through P.W. 3 to his counsel in Tenali to the effect that on account of his father's Sradha ceremony he could not attend court on 13 July, 194.8 and prayed that an adjournment of two days may be granted. The counsel accordingly filed a written application and the same came on for hearing on the 13 itself apparently earlier in the day when the learned Judge would be disposing of Miscellaneous applications. At f hat time, the plaintiff's counsel did not oppose the request of the defendant for the postponement and must have agreed to the postponement. Despite the agreement of the parties, the learned Subordinate Judge did not find it just to grant the adjournment and rejected that application as well. Probably a little later in the date, nearly an hour later, or more or less about that time, the suit was called on for hearing and since the defendant or his witnesses were absent the. suit was decreed ex parte.

(2.) At about 1 p. m. the appellant reached Tenali and proceeded to his counsel and on the same date itself filed ah application for setting aside the ex parte decree, whose rejection caused the above appeal.

(3.) The learned Judge found that the evidence on behalf of the appellant, namely, that of himself, examined as P.W. 1, that of his Purohit, P.W. 2 and that of the carrier of the letter P.W. 3 cannot be accepted. The learned Subordinate Judge was impressed with the testimony of P.W. 1 and accepting this solitary evidence of R. W. 1 and rejecting that of the plaintiff's witnesses, found that there was no justifiable or sufficient cause for the absence of the defendant when the case was called on for hearing and therefore refused to set aside the ex parte decree. The learned Judge has given various reasons why he did not accept the testimony of P.W. 1. He says, if as a matter of fact, P.W. 1 had his father's ceremony on the 13th, the definite date should have been mentioned in the letter and moreover the ceremony itself would not have taken more than a few minutes, and therefore, it would have been possible for him to attend Court in time. The learned Judge did not believe the evidence of P.W. 2 or that of P.W. 3. We are not satisfied that the action of the learned Judge in summarily rejecting the evidence of these witnesses would be justified. Mr. P. V. Chalapathi Rao, for the respondent, invites our attention to Order 9 Rule 13 and contends that " sufficient cause " within the meaning of that rule has not been proved to the satisfaction of the court and as the trial court did not derive satisfaction, this court could not in appeal interfere. He also argued that the facts and circumstances indicate that there was misconduct or gross negligence on the part of the defendant and that was the reason why he did not attend court on 13 July, 1948. The observations of Sir Walter Salis Schwabe, C.J., in R. A. Arunachala Aiyar V/s. C. Subbaramiah were also relied upon.