Innovation Apartments Flat Owners Association, Secundrabad vs M/s. Annovation Associates, Secundrabad

This is an appeal against the order dated 18-4-1990 of the learned III Additional Judge, City Civil Court, Hyderabad at Secundrabad dismissing I.A. No. 161/ 89 in O.S. No. 213/87 on his file. Aggrieved by the same, the petitioner in the I.A. and the defendant in the suit filed this appeal.

The points that arise for consideration are:

(1) Whether this is an order attracting the provisions of O. 9, R. 13, C.P.C.?

(2) In any event whether there are grounds for setting aside the ex parte order?

(3) To what relief?

Point No. 1: The facts which are not in dispute are the following: on 8-2-89 when the judgment was pronounced, the defendant has not filed the written statement, though the written statement was filed sometime later the same day. Thus this is case where the lower Court disposed of the matter under O.8, R. 10, C.P.C., decreeing the suit at the stage when the written statement was not filed. It is also to be noted that the judgment of the lower Court shows that P.W. 1 was examined, some documents were marked while decreeing the suit. Relying upon these circumstances, the learned counsel for the petitioner submits that this is not an ex parte decree; the decree was passed on merits having considered the oral and documentary evidence adduced by the plaintiff and consequently the provisions of O.9, R. 13, C.P.C. are not attracted.

Order IX, R. 13, C.P.C., reads as follows:

"Setting aside decree ex parte against defendants:--

In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit,

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Explanation: Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree."

This position is squarely covered by the two decisions one, of the Madras High Court and the other of the Karnataka High Court. In the decision reported in N. Jayaraman Vs. Glaxo Laboratories India Ltd., Madras, it is observed as follows (at p. 260):

"The requirement under O. 8, R. 10, C.P.C. to pronounce a judgment against the party who fails to present a written statement does not indicate that the need for writing a judgment is dispensed with and the mechanical one-sided order should be made by the Court without applying its mind. It, therefore, follows that in the present case there has been no judgment on the merit, but only a decree against the respondent owing to its failure to file a written statement."

The decision reported in Kuvarp Industries, Bangalore v. State Bank of Mysore AIR 1985 Kant 77 is a case where after granting 8 adjournments the Court adjourned the suit finally for filing written statement to a certain date. On that date, the defendants did not file the written statement and when their lawyer wanted to file application for better particulars, the Court did not permit him to do so and posted the suit later on, on the same date, for filing written statement; later when no written statement was filed and the defendants were absent when called, the Court set them ex parte and judgment and decree were passed under O.8, R. 10, C.P.C. On the said particulars it is observed as follows (Paras 7 and 10) :--

"Therefore, the insertion of the word ''decree'' in R. 10 now, in my opinion, is meant to give an alternate relief to the party under O.9, R. 13, C.P.C., instead of driving him to a Regular Appeal which would involve a lot of expense and energy and the decision of which matter may take unnecessarily longer time."

..... Therefore, in the result, 1 find that the judgment and decree contemplated under O. 8, R. 10, C.P.C. amount to an ex parte judgment and ex parte decree and thus attract O.9, R. 13, C.P.C. also."

Apart from these two decisions, no other decision on this point is brought to my notice. As rightly observed in those two decisions and as can be seen from the wording of R. 13 of O.9, C.P.C. The provisions of O.9, R. 13 can be invoked in any case in which a decree is passed ex parte and the question whether the ex parte decree was passed in view of non-filing of the written statement or otherwise is of no consequence. The objective in doing so is to avoid driving the parties to file a regular appeal involving a lot of expenditure and waste of time. Thus I find that this is a case squarely coming within the four corners of O.9, R. 13, C.P.C. Accordingly I find this point in favour of the appellant.

Point No. 2: It is the contention of the appellant that in view of the illness of his Advocate, the matter could not be proceeded further; and file the written statement in time. To support this submission, reliance is placed on the affidavit of Sri. M. Narahari, counsel for the appellant. The said affidavit clearly shows that Sri M. Narahari, Advocate appearing for the appellant was unwell and consequently the written statement could not be filed in time.

On behalf of the respondent it is submitted that even earlier i.e. in June, 1988 the appellant was set ex parte. The matter was posted from 15-6-88 to 5-7-88. In the meanwhile i.e. on 28-6-88, an application was filed by the appellant to set aside the ex parte order, the said application was allowed, the suit was restored to file and was posted to 5-7-88, in the affidavit filed in support of the application to set aside the ex parte order dated 16-6-88 it was specifically mentioned that while setting aside the ex parte order dated 16-6-88 the defendant be permitted to file the written statement, but no written statement was filed on 5-7-88, the date to which it was posted after the ex parte order dated 16-6-88 was set aside; after 5-7-88 the matter underwent 12 adjournments spreading over a period of more than 6 months and ultimately the written statement was filed only on 8-2-88, the date on which the case is posted for judgment and it was submitted that the written statement was filed after the judgment was pronounced. Sri Narahari, learned counsel for the appellant submits that before being admitted in the hospital, for a long time he was bedridden and hence he could not prepare the written statement. The learned counsel for the appellant relies upon a decision reported in Aman Alli Saheb Vs. K. Venkata Rama Suryanarayana Subba Raju, to show that the fact that the counsel was out of station is sufficient cause for his absence and consequently the ex parte order is to be set aside. Relying upon this decision, it is submitted that due to ill-health the appellant''s counsel was unable to attend the Court much less to draft the written statement and under those circumstances, it must be taken that there is sufficient cause for not filing the written statement in time. It is to be seen that though in the affidavit filed in support of the application while praying to set aside the ex parte order, it was also prayed that the written statement be received, but no such written statement was filed till 8-2-89. But since it is represented that the written statement could not be filed in view of the ill-health of the appellant''s counsel, which is supported by the affidavit of the counsel for the appellant, I find that there is reasonable cause for the delay, and it is a fit case where the ex parte order be set aside. Accordingly I find this point in favour of the appellant.

Point No. 3 : In the result, in view of my findings on points 1 and 2, the appeal is allowed. The lower Court shall dispose of the matter within three months from today, since it is alleged that the appellant is utilising the transformer etc., without paying any money and since it is submitted that in the event of the matter being delayed further, the transformer will be a chunk. No costs.

Appeal allowed.