Polepalle Sankarayanarayana Chetty vs K. Sundara Rajulu Chetty

P.S. Narayana, J.—This civil revision petition is filed against the order in C.M.A. No. 1 of 1999 dated:19-3-1999 on the file of the Additional District Judge, Madanapalle confirming the order in I.A. No. 1211 of 1998 in O.S. No. 306 of 1998 dated:18-1-1999 on the file of the Additional Junior Civil Judge, Madanapalle. The revision petitioner is the defendant in the suit. I.A.No. 1211 of 1998 was filed to set aside the ex parte decree dated:21-9-1998 passed against him.

The case of the revision petitioner is that he did not receive the letter written by his Advocate about the date of hearing of the suit, as he had shifted his residence and on the date i.e., 16-9-1998, as he was not present, his counsel reported not ready and subsequent thereto he was set ex parte and accordingly an ex parte decree was passed. Therefore, the present interlocutory application was filed to set aside the ex parte decree. It is his further case that he is having good defence in the suit and if the decree is not set aside, he will be put to serious loss. He had also taken a stand that the suit was settled out of the court and, in fact, the respondent, had executed a receipt dated:23-7-1997 in his favour.

The respondent had filed a detailed counter denying all the allegations. The grievance of the respondent is that with a view to delay the proceedings only intentionally the revision petitioner has been adopting these tactics. The court of the first instance after hearing both the parties had dismissed the application to set aside the ex parte decree and aggrieved by the same, CMA. No. 1 of 1999 was filed on the file of the Additional District Judge, Madanapalle, which was also dismissed. Aggrieved by the said order, the present civil revision petition is filed.

The learned counsel representing the revision petitioner, Sri K. Venkataramana Reddy had taken me through the order of the appellate court and also the order made by the court of the first instance and contended that absolutely there is no negligence on the part of the revision petitioner and, in fact, the revision petitioner had filed an application to set aside the ex parte decree within time and the court below instead of giving an opportunity to contest the matter had erroneously dismissed the said application. The learned counsel also contended that the past conduct of the party cannot be a ground for dismissing the application. The learned counsel also placed reliance on the decision of this court in Mannam Subba Rao v. Kommi Poliah Naidu1, wherein it was observed, "prior default of negligence of the applicant cannot be made a ground for rejecting his application to set aside the ex parte decree." The learned counsel has also submitted that the ground that ''affidavit of the counsel was not filed for the purpose of substantiating his case is totally unsustainable ground'' and hence the order of the appellate court suffers from legal infirmity.

Sri M. Venkataramana Reddy, learned counsel appearing for the respondent had contended that the order passed by both the courts below was not on the ground of past conduct only, but it was specifically held that the revision petitioner had not made out any sufficient cause to set aside the ex parte decree and since the jurisdiction of the revisional court u/s 115 of the Code of Civil Procedure, 1908 (for short '' the Code'') is very limited and inasmuch as there is no jurisdictional error involved in the matter, this court cannot interfere with such an order passed by the courts below.

It is not in dispute that the application - I.A.No. 1211 of 1998 in O.S.No. 1998 on the file of the Additional Junior Civil Judge, Madanapalle was filed within the period of limitation and the cause had been explained by the revision petitioner for his not attending the court on that particular day. It may be appropriate to look into the provisions of Order IX Rule 13 of the Code, which reads as follows:

"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 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:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of other defendants also.

[Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff''s claim.]

[Explanation: Whether 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.]

The relevant words which assume importance in Order IX Rule 13 of the Code are "that he was prevented by any sufficient cause from appearing when the suit was called on for hearing" and also "the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into the court or otherwise". It is needless to mention that the settled principle of law is that normally the matter should be decided on merits, unless otherwise it is impossible or impracticable in view of the blameworthy conduct of the opposite party.

In the present case the revision petitioner had explained the cause as to why he was unable to attend the court on a particular day. It is also pertinent to note that within a few days, he had made an application for setting aside the ex parte decree within the period of limitation. In fact, repeatedly, the courts have discouraged the practice of dismissing such applications, which are made within the period of limitation explaining sufficient cause.

In G.P.Srivastava v. R.K.Raizada2 (at page 1222), the Apex Court was pleased to observe as follows:

"Under order 9 Rule 13 CPC, an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any ''sufficient cause'' from appearing when the suit was called on for hearing. Unless ''sufficient cause'' is shown for nonappearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree. The words ''was prevented by any sufficient cause from appearing'' must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The Court have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The ''sufficient cause'' for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If ''sufficient cause'' is made out for non appearance of the defendant on the date fixed for hearing when ex parte proceedings initiated against him, he cannot be penalized for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits."

In fact, while deciding the matters of this nature, the court cannot adopt a pedantic approach; but it is always essential to adopt a liberal approach so as to do substantial justice between the parties. But, unfortunately, in this matter, both the courts below had negatived the relief to the revision petitioner on the ground that the cause explained by him is not a sufficient cause within the meaning of Order 9 Rule 13 of the Code.

The suit, as seen from the record, is a money suit. Originally it was instituted as O.S.No.153 of 1985 on the file of the Subordinate Judge Court, Madanapalle, which was renumbered as O.S.No. 306 of 1998 on the file of the Additional Junior Civil Judge, Madanapalle.

In the facts and circumstances of the case, is it a case where the ex parte decree has to be set aside without imposing any condition or is it a case where certain conditions are to be imposed, at least, making the revision petitioner to get ready and proceed further in the matter, is the question that has to be decided.

In Racharla Rama Rao v. V. Venkateshwarlu & Co.3, this court was pleased to observe that imposition of terms would depend upon various facts and circumstances. In the present case also, I deem it fit to impose certain conditions while setting aside the ex parte decree dated:21-9-1998 on the file of the Additional Junior Civil Judge, Madanapalle.

Before specifying the conditions and before parting with the case, inasmuch as often the courts are confronted with a situation of this nature, where ex parte decrees are being made and applications are being filed for setting aside the ex parte decrees, I deem it appropriate that the following guide-lines may be laid down in this regard.

Normally matters should be decided only on merits, unless it is inevitable and the conduct of the opposite party is so blame worthy;

The fundamental principle is that every matter should be decided on merits and the courts should make every endeavor in that direction.

The courts are not expected to adopt pedantic approach in matters of this nature.

Liberal approach does not mean to extend to such an extent of ignoring the facts of the case totally.

The courts can always impose necessary terms and conditions to make the parties to get ready to proceed further in the matte.

The terms and conditions, at any rate, must not be onerous or impossible of performance.

The imposition of terms and conditions must depend upon facts and circumstances of each case.

The principles specified above are only illustrative and not exhaustive. Having discussed the matter elaborately, as specified above, I am of the considered opinion that in the present case the ex parte decree dated: 21-9-1998 shall be set aside, on the condition of the revision petitioner depositing the suit costs and also one fourth of the suit amount within two months from the date of receipt of a copy of this order. On such deposit being made the court of the first instance shall make an order setting aside the ex parte decree dated:21-9-1998 and shall proceed further in the matter in accordance with law.

The civil revision petition is allowed to the extent indicated above. In the circumstances, each party is directed to bear their own costs.