N.S. Shyama Sundar vs A. Amarnath

B. Manohar, J.—This writ petition is directed against the order dated 31-08-2012 made on I.A. No. I in O.S. No. 8038/2007 on the file of the Principal City Civil and Sessions Judge, Bangalore.

The petitioner herein filed O.S. No. 8038/2007 seeking for damages for the act of omission and commission which contributed mental agony to the petitioner and his wife. It was alleged that due to the filing of criminal case against the petitioner and his wife under Section 498-A of IPC, the petitioner has suffered mental agony and his wife died subsequently due to mental agony and hence sought for damages of Rs. 50,00,000/- from defendants 1 to 3.

Though the second defendant was served with notice, she remained unrepresented. The Trial Court by its order dated 21-11-2009 placed the second defendant on ex-parte. After lapse of 14 months of passing the order, the second defendant filed an application in I.A. No. I under Order IX Rule 17 of CPC seeking for setting aside the order placing the second defendant ex-parte and permit her to defend the case by filing written statement.

Though the petitioner filed objection to the said application, the trial Court without considering the said objection without assigning any reasons by its order dated 31-08-2012 allowed the application I.A. No. I, though the advocate appearing for the second defendant was absent and posted the matter for framing of issues on 24-11-2012. Being aggrieved by the said order, the petitioner has filed this writ petition.

Learned Counsel appearing for the petitioner contended that the order passed by the trial Court allowing I.A. No. I and also accepting the written statement which is filed belatedly is contrary to law. The second defendant has not assigned any valid reason for non-appearance though notice has been served on her. The trial Court without considering the objection of the petitioner and without assigning any reasons allowed the said application which is contrary to the provisions of the Code of Civil Procedure. Only on assigning good reasons for non-appearance, the court may set aside the order placing the second defendant ex-parte in the suit. In the instant case, though the advocate for the second defendant was absent on the said date, the Trial Court mechanically allowed the application and the same is not sustainable in law.

On the other hand, learned counsel appearing for the second respondent argued in support of the order passed by the trial Court and contended that in the application filed under Order IX Rule 7 of CPC, the second respondent has given valid reasons for nonappearance and also permission has been sought to defend the case by filing written statement. The Trial Court accepted the said reason and allowed the application. The Court need not pass a speaking order and setting aside the order of placing the second defendant ex-parte will not affect the interest of the petitioner and sought for dismissal of the writ petition by upholding the order passed by the trial Court.

I have carefully considering the arguments addressed by the learned counsel for the parties and perused the order impugned and other relevant records.

The records clearly disclose that though the second defendant was duly served with notice, she has not entered appearance. In view of that, the Trial Court passed an order placing the second defendant ex-parte. After 14 months, the second defendant filed an application I.A. No. I under Order IX Rule 7 of CPC seeking for setting aside the order placing the second defendant ex-parte and permit her to contest the matter by filing the written statement. The written statement was also filed along with the said application. The matter was adjourned many a time and referred to mediation. Since there was no settlement, the Court had taken up the matter. Considering the reasons assigned in I.A. No. I filed by the second defendant, the trial Court allowed the application and posted the matter for framing of issues. The said order has been questioned in the present writ petition.

The main contention of the petitioner in the writ petition is that without considering the objections filed by the petitioner, without assigning any reasons, the trial Court passed the order mechanically though the advocate appearing for the second defendant was absent. On perusal of the order sheet dated 31-08-2012 produced by the petitioner, it is clear that on 31-08-2012, the counsel appearing for the defendants was absent and the counsel for the petitioner was present. The Trial Court, recorded that "Heard. I.A. No. I is allowed" and posted the matter on 24-11-2012 for framing of issues. However, the court has not assigned any reasons for allowing I.A. No. I. Under Order IX Rule 7 of CPC, if the court is satisfied that due to the good reasons, the defendant could not appear before the Court on previous occasion, the court has to put on terms or impose costs or otherwise. The Court must give reasons for setting aside the ex-parte order and also for accepting written statement filed belatedly. In the instant case, the Court has not assigned any reasons for setting the order placing the second defendant ex-parte. Hence, the order passed by the Trial Court cannot be sustained. The Trial Court has to reconsider the matter afresh and pass orders after considering the objections filed by the petitioner.

Accordingly, I pass the following:

ORDER

The writ petition stands allowed.

The order dated 31.8.2012 made on I.A. No. 1 in OS No. 8038/2007 by the Additional City Civil Judge (CCH-15), Bangalore, is set aside. The matter is remitted to the Trial Court to reconsider the same afresh and to pass orders in accordance with law.