Bachala Siva Prasad and Another vs Gram Panchayat

B.K. Somasekhara, J.—The order of the learned District Judge, Ongole in C.M.A. No. 50/94, dated 22-8-1996 dismissing the appeal and confirming the order of the learned Principal District Munsif, Ongole in I.A. No. 2462/92, dated 1-9-1994 is challenged. The petitioners are the plaintiffs in O.S. No. 553/86 and the respondent is the defendant. The case was posted for hearing on 19-6-1992 and since the petitioners did not appear in the Court when the case was called it was dismissed by the learned Principal District Munsif on the even date. To set aside that order, the petitioners made an application under Order 9 Rule 13 CPC. The learned District Munsif while holding that the petitioners never cared to find out the fate of the case from 20-4-1992 to 19-6-1992 and they never even cared to approach the Advocate on the ground that they were busy in arranging the Chief Minister''s visit clearly shows that they are interested in prosecuting the case, dismissed the application. The learned District Judge agreed with the learned District Munsif and dismissed appeal.

The learned Counsel for the petitioners has contended that the petitioners were prevented from submitting sufficient cause for not presenting in the Court when the case was called on 19-6-1992. The learned District Munsif without giving an opportunity to the petitioners to prove the case, has drawn an inference against them and thereby dismissed the application and v the similar reasoning the learned District Judge also dismissed the appeal.

The learned Counsel for the respondent contended that the attitude of the petitioners is one of negligence and not diligence and being the plaintiffs they even did not care to contact the advocate and were interested in some other matters unconcerned with their own case. Therefore on merits the Courts were right in dismissing the petitioners applications.

The order under revision cannot be supported for various reasons the first place when an application under Order 9 Rule 13 CPC was filed pleading that the party was prevented from appearing in the Court when case was called, it is the bounden duty of the Court to inquire into in accordance with law and then record a finding whether there was such a ground for absence of the party. Neither the affidavit is filed in support of such a petition nor a submission is made by the learned Advocate to decide the matter. The parameters of Order 19, Rules 1 and 2 CPC are well known that in certain circumstances the Court will call upon the parties to prove the matter and even then if the other party wants the deponent of the affidavit for cross-examination, the affidavit becomes non est. The implications of such affidavit and the legal effect have been dealt with and decided as above, in Gaddipati Sambrajyam and Another Vs. Panguluri Mahalakshmamma and Others, . The preamble of the Evidence Act itself says that affidavit is no evidence. If any fact is permitted by the Court by consent or otherwise, then only it may become the evidence, however, subject to challenge by the others. In that view of the matter, for want of enquiry into the grounds of the petitioners, seeking to set aside the dismissal of the suit for default and for acting upon mere affidavits, the order of the learned District Munsif confirmed by the learned District Judge in the appeal deserves to be set aside.

The learned Judges have rightly held that the petitioners are interested elsewhere than their case. They have put the respondent-defendant not only to unnecessary expenditure and waste of time in addition to robbing the valuable time of the Court and therefore the petitioners to pay heavy costs to the respondent to have the benefit of this. The revision petition is allowed. The impugned orders of the learned District Munsif and the learned District Judge under revision are set aside. The matter is remitted back to the learned District Munsif, Ongole for disposal according to law after giving opportunity to both sides. However the petitioners shall not have the benefit of this order unless they pay Rs. 2,000/- to the respondent or his Advocate as a condition precedent. The payment may be made either in this Court or in the trial Court.