S. Viswanatha Reddy vs N. Venkateswara Reddy and Others

Motilal B. Naik, J.—Order dated 25-1-1996 passed in LA. No. 116 of 1995 in O.S. No. 92 of 1986 on the file of learned Subordinate Judge, Cuddapah is the subject matter of controversy in this revision.

The petitioner is the defendant in the suit filed in O.S . No. 92 of 1986 by the respondents herein for recovery of certain money. The petitioner claims that he also filed written statement and the suit underwent a number of adjournments and finally on 23-3-1993 when the suit came up for trial, the petitioner defendant was not present, thereby petitioner defendant was set ex parte and decree was passed on the basis of the suit averments. While so, the petitioner-defendant realised that an ex parte decree has been passed on 23-3-1993 and he made efforts to get the ex parte decree set aside by filing an application under Order 9 Rule 13 of C.P.C. As there was delay an application LA. No. 116/95 was filed u/s 5 of Limitation Act seeking to condone the delay of 525 days in filing a petition to set aside the ex parte decree. When the application for condoning delay came up for consideration on 25-1-1996 neither the Counsel for petitioner nor the petitioner was present, more over there was no representation made on their behalf. However, the trial Court by order dated 25-1-1996 allowed the application filed u/s 5 of Limitation Act condoning the delay of 525 days with condition that petitioner-defendant shall deposit 1/4 of the suit amount and costs by 28-2-1996. The said conditional order dated 25-1-1996 is assailed in this revision.

When the revision is taken up for consideration, it is brought to the notice of the Court that the condition imposed by the lower Court directing the petitioner-defendant to deposit 1 /4 of the suit amount and costs by 28-2-1996 is not complied with and hence, by order dt.1-3-1996, the trial Court dismissed the application filed under Order 9 Rule 13 of C.P.C. to set aside the ex parte decree.

During the course of the arguments, learned Counsel for respondents Mr. Narsimha Reddy raised two important propositions. It is contended by Mr. Narsimha Reddy that the first order passed on 25-1-1996 is an interlocutory order and as such no revision could be preferred by defendants before this Court u/s 115 of C.P.C, and as such the revision has to be rejected at the threshold itself. The other proposition raised is that as a result of petitioner not complying with the conditional order dt.25-1-1996 by which time was given upto 28-2-1996 requiring the petitioner-defendant to deposit 1/4 of the suit amount and costs, the trial Court by order dated 1-3-1996 rejected the application in following terms:

"Amount not deposited as per orders in LA. 116/95, dated 25-1-1996. Hence rejected."

The learned Counsel therefore states that in view of the trial Court passing an order dt.1-3-1996, rejecting the application on account of petitioner not complying with the conditional order dt.25-1-1996, which order is not under challenge, the same has become final and therefore stated that the petitioner cannot seek any relief against the first order passed in I.A.116/95, dt. 25-1-1996.

In view of these legal implications, this Court felt that in order to examine the legal implications and to pass an appropriate order, assistance of Counsel as amicus curiae is required and accordingly assistance of Mr. V.L.N.G.K. Murthy was sought as amicus curiae in this case.

It is represented by learned amicus curiae that the Court has powers u/s 115 of C.P.C. to adjudicate an issue, though not directly challenged before the Court, even if it is brought to the notice of the Court, in order to render justice to the parties. The learned amicus curiae stated that even if it is accepted that the first order passed by the trial Court dt.25-1-1996 is an interlocutory order and no revision could be maintained, yet when it is brought to the notice of the Court about the subsequent order dt. 1-3-1996, though no revision is filed, this Court is competent to exercise powers u/s 115 of C.P.C. and that the entire controversy could be examined to render just decision. Learned amicus curiae placed before me a decision of this Court in Vemuru Ramasubbayya v. Bollu Sarojini and Anr., 1971 (1) An.W.R. 332 and has taken me through the relevant paragraph of the decision which was rendered by justice A.V. Krishna Rao as he then was. The learned Judge in the said decision has referred to a decision of Madras High Court in Andrew Anthony v. The Rev. F.M. Dupont, ILR 1882 4 Mad 217. The learned Judge has held that "These two above decisions are sufficient to hold that the High Court''s power of interference u/s 115, Civil Procedure Code, exists for setting right matters, when they fall within the ambit of Section 115, even in the absence of a revision petition by the respondents in the revision petition". I am in entire agreement with the above proposition of law rendered by Justice A.V. Krishna Rao in the said judgment.

In this case what is to be seen is that the first order dt.25-1-1996 has been challenged by the petitioner-defendant on various grounds, through which order the lower Court has imposed certain conditions. According to the first order, the petitioner should have complied the order by 28-2-1996 and having failed to comply with the said order, the trial Court on 1-3-1996 rejected the application which was filed under Order 9 Rule 13 of CPC on the ground that the orders passed in LA. 116/95 were not complied with by 28-2-1996. Though, the second order dt.1-3-1996 has become final as unchallenged, as per the decision of the learned Judge of this Court in the case cited supra, the powers of the High Court u/s 115 CPC are such that to set right the matters which are in controversy and for rendering proper justice, this Court can take note of such an order passed which is not challenged and set at naught the controversy once for all.

As indicated, this Court assumes its powers u/s 115 of CPC to render proper decision, if the order passed by the trial Court if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

In view of the language used in Section 115 of CPC, in order to see that proper justice is done to the parties, I am inclined to say without there being a revision challenging second order passed by the trial Court, when it is brought to the notice of the Court at the time of hearing, the Court is competent to take note of the factor and is competent to decide on the merits of the first order.

Now the question is whether the first order passed by the trial Court in LA. 116/95 dated 25-1-1996 is to be set aside under the revisionary powers, though it is contended that no revision could lie on the interlocutory orders passed by the trial Courts.

The question whether the order passed by trial Court dt.25-1-1996 imposing condition on the petitioner to deposit certain money before 28-2-1996 is an interlocutory order and in such a case revision is not maintainable, is a matter that could be decided at an appropriate time. Since, I am already equipped with judgment of this Court which undoubtedly says that the Court in order to render appropriate justice as per Section 115 of CPC, even though the second order is not challenged can take note of that order and render justice in the circumstances of the case. Now that the second order dated 1-3-1996 is placed before me, which is to the effect of rejecting the application filed u/s 5 of the Limitation Act on the ground of non- compliance with the conditional order dt.25-1-1996. In the view I have taken in order to render appropriate justice in this case, I am of the view that the Court is competent to set at naught the controversy by remitting the matter to the trial Court by setting aside the orders passed in I.A.116/95 dt.25-1-1996 and by directing the Court below to dispose of the I.A.116/95 on merits by giving necessary notices to both the parties. Once Court passes an appropriate order on the petition filed u/s 5 of the Limitation Act, thereafter it is open to the Court to decide the application filed under Order 9 Rule 13 of CPC according to law. Accordingly, the order in LA. 116/95 dated 25-1-1996 is set aside and consequently I.A.116/95 is restored on the file of Sub-Court, Cuddapah. The subsequent order passed dt.1-3-1996 by the lower Court is set aside. However, in the circumstances petitioners are directed to pay costs of Rs. 1,500/- to Mr. G. Ramachandra Reddy, junior Counsel of learned Counsel to respondent within a period of one month from today. Insofar as the amount of Rs. 10,000/- deposited by the petitioner defendant as per directions of this Court at the time of admitting the revision the said money shall be kept in the Court custody till disposal of LA. 116/95 and the same shall be subject to the outcome of LA. 116/95.

As the matter is remitted to the trial Court, the trial Court shall dispose of the LA. 116/95 as indicated, above within a period of two months from the date of receipt of copy of this order. Accordingly, the Civil Revision Petition is disposed of. No costs.