IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

APPEAL SUIT No.757 of 2019

Between:

1. Gutti Kumari Lakshmi, W/o Nageswara Rao

(late), aged 58 years, Hindu, Widow, Weaver,

R/o Danthumpet, Behind Vegetable Market,

Desaipet Panchayat, Vetapalem Mandal.

2. Gutti Siva Jyothi, D/o Nageswara Rao (late),

aged 33 years, Hindu, Employee R/o

Danthumpet, Behind Vegetable Market,

Desaipet Panchayat, Vetapalem Mandal.

3. Gutti Siva, D/o Nageswara Rao (late), aged 30

years, Hindu, Weaver, R/o Danthumpet,

Behind Vegetable Market, Desaipet

Panchayat, Vetapalem Mandal.

4. Gutti Malleswara Rao @ Chinna, S/o

Nageswara Rao (late), aged 25 years, Hindu,

Widow, Weaver, R/o Danthumpet, Behind

Vegetable Market, Desaipet Panchayat,

Vetapalem Mandal.

… Appellants / Defendants.

AND

Boddu Sanjeeva Rao, S/o Venkateswarlu, aged

64 years, Hindu, Retired Teacher, R/o

Amodagiripatnam, Vetapalem Mandal.

… Respondent / Plaintiff.

DATE OF ORDER PRONOUNCED : 25.11.2020

SUBMITTED FOR APPROVAL :

THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI

1. Whether Reporters of Local Newspapers

may be allowed to see the order? : Yes/No

2. Whether the copy of order may be

marked to Law Reporters/Journals? : Yes/No

3. Whether His Lordship wish to

see the fair copy of the order? : Yes/No

___________________________

LALITHA KANNEGANTI, J

2

* THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI

+ APPEAL SUIT No.757 of 2019

% 25.11.2020

1. Gutti Kumari Lakshmi, W/o Nageswara Rao

(late), aged 58 years, Hindu, Widow, Weaver, R/o

Danthumpet, Behind Vegetable Market, Desaipet

Panchayat, Vetapalem Mandal.

2. Gutti Siva Jyothi, D/o Nageswara Rao (late), aged

33 years, Hindu, Employee R/o Danthumpet,

Behind Vegetable Market, Desaipet Panchayat,

Vetapalem Mandal.

3. Gutti Siva, D/o Nageswara Rao (late), aged 30

years, Hindu, Weaver, R/o Danthumpet, Behind

Vegetable Market, Desaipet Panchayat,

Vetapalem Mandal.

4. Gutti Malleswara Rao @ Chinna, S/o Nageswara

Rao (late), aged 25 years, Hindu, Widow, Weaver,

R/o Danthumpet, Behind Vegetable Market,

Desaipet Panchayat, Vetapalem Mandal.

… Appellants / Defendants.

AND

Boddu Sanjeeva Rao, S/o Venkateswarlu, aged 64

years, Hindu, Retired Teacher, R/o

Amodagiripatnam, Vetapalem Mandal.

… Respondent / Plaintiff.

! Counsel for Appellants : Sri M.Chalapathi Rao

^ Counsel for Respondents : Sri Rama Sharana Sarma

Palaparthi

< Gist:

> Head Note:

? Cases referred:

01) AIR 1961 AP 116

02) AIR 1959 AP 507

03) AIR 1998 SC 3222 = (1998) 7 SCC 133

04) (1996) 5 SCC 529

05) (1998) 2 SCC 206

06) 1993 Supp (3) SCC 256

07) 2009 (9) SCC 733

08) AIR 1981 SC 1400

09) ASSR No.3107 of 2020 dated 20.0.2020

10) AIR 2003 SC 3527

11) 2017 (5) ALD 194

12) AIR 1987 SC 42

13) 2013 (6) ALD 499

14) Civil Appeal No.2582-2583 of 2011

This Court delivered the following:

3

THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI

I.A.No.1 of 2019

in/and

APPEAL SUIT No.757 of 2019

JUDGMENT:

This appeal is preferred assailing the decree and judgment

dated 23.08.2017 passed in O.S.No.88 of 2012 by Senior Civil

Judge, Chirala, Prakasam District, wherein the defendants were

directed to pay the suit amount of Rs.5,85,729/- with interest at

12% per annum from the date of filing of the suit till the date of

decree and thereafter with interest at 6% per annum till the date of

realization on the principal amount of Rs.4,25,050/- from and out

of the estate of the deceased Gutti Nageswara Rao.

2. The appellants filed I.A.No.1 of 2019 for condonation of delay

of 717 days in filing the appeal.

3. For the sake of convenience, the parties in this appeal are

referred to as they are arrayed in O.S.No.88 of 2012.

4. The case of the appellants is that the plaintiff filed the suit in

O.S.No.88 of 2012 on the foot of 59 promissory notes allegedly

executed by one Gutti Nageswara Rao, who is the husband of

defendant No.1 and father of defendant Nos. 2 to 4. The said Gutti

Nageswara Rao failed to repay the amount due to the plaintiff and

he died intestate on 10.11.2011 leaving defendant Nos.1 to 4 as

his legal heirs. Thereafter when the plaintiff informed defendant

Nos.1 to 4 about the amount due to him by Gutti Nageswara Rao

and demanded them to repay the same, they promised to discharge

the debt, but they did not keep up their promise and postponed

4

the same on one pretext or other. As such the plaintiff was

constrained to file the suit for recovery of amount on the foot of

promissory notes.

5. The defendants filed their written statement denying the

execution of the promissory notes and the signatures of the

deceased on the promissory notes alleging that the promissory

notes are forged. It is stated that their father has no necessity to

borrow the amount and all 59 promissory notes were created and

pressed into service. It is stated that the deceased, during his

lifetime opened a savings bank account in Andhra Bank,

Vetapalem branch bearing Account No.14930 and also in Pinakini

Grameena Bank, Chirala, as such specimen signatures of their

father are available for comparison.

6. The Court below decreed the suit holding that the

defendants failed to prove that Exhibits A-1 to A-59 are created by

forging the signatures of Gutti Nageswara Rao and on the other

hand, the evidence of P.W.1 and the chief examination affidavit of

plaintiff witnesses show that the deceased Gutti Nageswara Rao

executed the suit promissory notes, when he borrowed the money

from the plaintiff.

7. Aggrieved by the same, the present appeal is filed with a

delay of 717 days.

8. Heard Sri M.Chalapathi Rao, learned counsel for the

appellants/defendants and Sri Rama Sharana Sarma Palaparthi,

for the respondent/plaintiff

5

9. Learned counsel for the defendants submits that the decree

and judgment passed by the trial Court is an exparte decree as it is

specifically noted in Paragraph-6 of the judgment that “ the

defendants called absent and defendants side arguments was

treated as nil” and the defendants were not given any opportunity

to put forth their case. He argued that the defendants were not

aware of the decree and judgment dated 23.08.2017 passed by the

trial Court and they came to know about it only when they received

attachment notice on 14.09.2019 in E.P.No.35 of 2019 and

immediately, they questioned their advocate, but he gave evasive

answers and gave away the suit record.

10. Learned counsel for the defendants submits that having lost

faith in their counsel, the defendants approached Sri D.Joshi Vijay

Kumar, another senior advocate at Chirala and requested him to

enquiry as to what had happened and after enquiry, they came to

know that an exparte decree was passed on 23.08.2017 and on

their request, their counsel obtained certified copies of decree and

judgment and they came to know that the said decree was put into

execution and their residential house was attached. Immediately

they got filed the present appeal. Learned counsel submits that

the delay of 717 days in filing the appeal is neither willful nor

wanton, but for the reasons stated above. Hence, the delay may be

condoned.

11. In support of his submission, learned counsel for the

defendants relied on the judgment of this Court in Thumu

Govardhana Rao and others Vs. Bolineni Ramachandraiah

1,

1

AIR 1961 AP 116

6

wherein by placing reliance on Sitharamaiah v. Virraju

2 wherein

it was observed that if the mistake is one of the lawyer, in

deserving cases it might be condoned:

“Section 5 of the Limitation Act provides that if the applicant

satisfies the court that he had sufficient cause for not

preferring the appeal within the period of limitation, the delay

might be excused. If really, the application acted bona fide on

the advice of his advocate, there can be no doubt that such

delay should be excused.

…….

In administering justice, the courts ought not to take too

technical a view on such matters and punish the litigants for

the wrong advice given by their advocates of clerks.”

12. In N.Balakrishnan Vs. M.Krishnamurthy

3 the Hon’ble Apex

Court held that:

“It is axiomatic that condonation of delay is a matter of

discretion of the court. Section 5 of the Limitation Act does not

say that such discretion can be exercised only if the delay is

within a certain limit. Length of delay is no matter,

acceptability of the explanation is the only criterion.

Sometimes delay of the shortest range may be uncondonable

due to want of acceptable explanation whereas in certain other

cases delay of very long range can be condoned as the

explanation thereof is satisfactory. Once the court accepts the

explanation as sufficient it is the result of positive exercise of

discretion and normally the superior court should not disturb

such finding, much less in reversional jurisdiction, unless the

exercise of discretion was on whole untenable grounds or

arbitrary or perverse. But it is a different matter when the first

court refuses to condone the delay. In such cases, the superior

court would be free to consider the cause shown for the delay

afresh and it is open to such superior court to come to its own

finding even untrammeled by the conclusion of the lower

court.”

2

AIR 1959 AP 507

3

AIR 1998 SC 3222 = (1998) 7 SCC 133

7

Learned counsel summed up his argument by stating that

the delay may be condoned in filing the appeal.

13. On the other hand Sri Rama Sharana Sarma Palaparthi,

learned counsel for the plaintiff submits that the defendants failed

to give any cogent reason for the inordinate delay of 717 days. He

submits that the allegation against the advocate that he has not

informed about passing of decree in the suit is unbelievable and

the defendants used to come to the Court physically whenever the

matter has been called and they used to verify the A-Diary for all

the proceedings. He submits that the defendants came to know

about the exparte decree only when the attachment was ordered is

false, because the defendants were served with notices in the E.P.

as well. He further submits that unless in an original cause of

action, the limitation for filing the appeal starts from the date of

pronouncement of the judgment excluding the time taken for

obtaining the certified copy of the judgment, as such there is a

delay of more than 2 years, which is not properly explained and

the said delay cannot be condoned. He further submits that the

decree cannot be termed as an exparte decree.

14. Having heard the learned counsel for the petitioner and the

learned counsel for the respondents and having perused the entire

material on record, the issues that fall for consideration are:

(1) Whether the appellant showed proper and sufficient cause

to condone the delay in filing the appeal?

(2) Whether the decree and judgment passed by the Court

below is an exparte decree? If so, whether the same is

liable to be set aside?

8

15. There is no dispute about the fact that the petitioner has

filed the suit for recovery of amount basing on 59 promissory

notes, which are alleged to have been executed by G.Nageswara

Rao who is father of the appellants herein and the suit was filed

against his legal representatives. The defendants have filed their

written statements and contested the case by denying the

execution of promissory notes and also pleaded that the signatures

have been forged. The plaintiff filed his chief affidavit, as PW1 and

Exs.A1 to A59 were marked through him. The Advocate appearing

on behalf of the defendants also cross-examined him. Thereafter

affidavits in lieu of chief examination of PWs2 and 3 were filed.

But, they were not cross-examined on behalf of the defendants.

The Court below had proceeded with the matter and recorded as

follows: “Heard the plaintiff side. The defendants called absent and

defendants arguments was treated as nil. Perused the records.” On

23.08.2017, the Court below has eventually decreed the suit with

costs directing the defendants to pay the suit amount by awarding

interest at 12% per annum from the date of filing the suit till the

date of decree and thereafter with interest at 6% per annum till the

date of realization on the principal amount of Rs.4,25,050/-.

Subsequent to the decree, the plaintiff filed E.P.No.35 of 2019 in

which notice was ordered and the same was duly served on the

defendants on 14.09.2019. As seen from the grounds of the appeal,

the appeal was filed on 18.11.2019. It is contended that the

counsel appearing on behalf of the defendants did not inform them

about the stage of the suit and when they questioned their counsel

after receiving summons in execution petition, he gave evasive

answers. It is further contended that they approached another

9

Advocate by name D. Joshi Vijay Kumar and through him the

defendants came to know that the suit was decreed on 23.08.2017.

Thereafter the defendants could get certified copy of judgment and

decree with the help of the said Advocate and filed the present

appeal.

16. In Sushila Narhari v. Nand Kumar and Ors.

4 the Hon’ble

Apex Court held thus:

“A reading of the facts leaves us with no doubt that the

advocate has derelicted his duty to inform the client by

registered post if there was any non-cooperation on behalf of

the appellants. Consequently, when the suit had come up

for trial, he has withdrawn his vakalatnama without notice

to the respondents. The trial Court set the appellants

exparte and decreed the suit for specific performance. The

application for condonation of delay of 40 days was filed.

The Court refused to condone the delay. In view of the

above, we find that she is well justified in filing the

application with the delay. The delay is accordingly

condoned.”

17. In Malkial Singh and another v. Joginder Singh and

Others

5, dealt with delay petition wherein the appellants pleaded

that the counsel engaged by them did not follow the proceedings

and allowed the said case by placing reliance on Tahil Ram

Issardas Sadarangani v. Ramchand Issardas Sadarangani

6

wherein it was held at para 4 as under:

“It is not disputed in the present case that on 15.03.1974

when Mr Adhia, Advocate withdrew from the case, the

petitioners were not present in Court. There is nothing on the

record to show as to whether the petitioners had the notice of

the hearing of the case on that day. We are of the view, when

Mr Adhia withdrew from the case, the interests of justice

4

1996 (5) SCC 529

5

1998 (2) SCC 206

6

1993 Supp (3) SCC 256

10

required, that a fresh notice for actual date of hearing should

have been sent to the parties. In any case in the facts and

circumstances of this case we feel that the party in person was

not at fault and as such should not be made to suffer.”

18. In Radha Krishna Rai v. Allahabad Bank and Others

7, the

Hon’ble Apex Court had condoned the delay of 1418 days in

preferring the appeal by observing as under:

“On the facts, we are of the view that though the period of

delay is unduly long, the circumstances are also very

unusual. The petitioner has been a victim of

misrepresentation of facts by his own advocate and was

kept under the impression that the appeal is pending before

the High Court whereas no appeal was in fact filed by the

advocate. It cannot be said that the appellant has not been

vigilant in prosecuting the appeal. The cause shown by the

petitioner is sufficient to justify condoning the delay in

filing the appeal”.

19. In Rafiq and Ors. Vs. Munshilal and Ors.

8, the Hon’ble

Apex Court observed that in the cases where the delay occurs due

to the fault of the advocate or his clerk the only one who would

suffer would not be the lawyer who did not appear but the party

whose interest he represented and it is not proper to make the

party suffer for the inaction, deliberate omission, or misdemeanor

of his agent.

20. In the present case the defendants have engaged an advocate

and filed written statement. Their contention is that they have no

information from the advocate till they received notice in the

execution petition. The certified copies of judgment and decree

were obtained with the help of another advocate. These incidents

make it clear that the advocate who appeared for the defendants

7

2009 (9) SCC 733

8

AIR 1981 SC 1400

11

before the Court below did not inform them about the stage and

result of the suit. The defendants also contended that when they

enquired with the advocate after receiving notice in execution

petition he gave evasive reply. Hence, in the circumstances of the

case, in the considered opinion of this Court the defendants should

not suffer for the mistake committed by the advocate as the

defendants were vigilant in filing the appeal. The defendants came

to know about the judgment and decree on 14.09.2019.

Immediately after coming to know about the same they obtained

certified copy and filed the appeal on 18.11.2019. Though there is

delay of 717 days from the date of decree i.e. on 23.08.2017, no

delay occurred after it came to the knowledge of the defendants.

Therefore, this Court is of the view that the delay is explained by

giving convincing and cogent reasons.

21. The apex Court time and again reiterated the principle that

while considering the petitions filed under Section 5 of the

Limitation Act that the condonation of the delay is a matter of

discretion of the Court as Section 5 does not say that such

discretion can be exercised only if delay is within certain limit. In

condoning delay what matters is not the period of delay but the

reasons for such delay is the criteria. Sometimes in condonation

petitions where the delay of shortest length occurs may be

dismissed due to want of acceptable reasons, whereas in cases

where there is delay of very long period can be condoned if the

explanation is satisfied. Once, the Courts accepts the explanation

as sufficient it results in positive discretion. Rules of Limitation Act

are not meant to destroy the rights of the parties. They are meant

to see that the parties do not resort to dilatory tactics but seek

12

remedy promptly. The object of providing a legal remedy is to

repair the damage caused by raising of legal injury.

22. The law of limitation is found upon the maxim “ Interest

Reipublicae Ut Sit Finis Litium”, which means litigation must

come to an end in the interest of society as a whole and

“vigilantibus non dormientibus jura subveniunt ” means law

assists those who are vigilant about their rights. While dealing

with an application under Section 5 of the Limitation Act, the

Court has to adopt a justice oriented approach. In the process of

rendering substantial justice, the Court should not lose sight of the

prejudice caused to the opposite party. While condoning the delay

the whole gamut of facts have to be scrutinized carefully to arrive

at a just conclusion. Delay cannot be condoned as a matter of

judicial generosity but with judicial discretion.

23. Learned counsel for the plaintiff relied on the judgment in

Lakshmi vs. Gunasekaran

9 wherein it was observed that the

petitioner therein adopted delay tatics at various stages. The facts

of that case are different and do not apply to the facts of the

present case and in this case, the defendants came up with a

satisfactory explanation for the delay.

24. In view of the reasons recorded above, this Court deems it

appropriate to condone the delay of 717 days in the interests of

justice. However, taking into consideration the suit is of the year

2012, the defendants shall pay an amount of Rs.10,000/- (Rupees

ten thousand only) to the plaintiff towards costs.

9

ASSR 3107 of 2020 dated 20.01.2020

13

25. The second point that falls for consideration is whether the

judgment impugned is an ex parte judgment as per Order XVII

Rule 2 and 3 of C.P.C. Learned counsel for the defendants relied

on the following judgment in B.Janakiramaiah Chetty Vs.

A.K.Parthasarthi

10 wherein it was held that:

“If the position is not so, the Court has no option but to proceed

as provided in Rule 2. Rules 2 and 3 operate in different and

distinct sets of circumstances. Rule 2 applies when an

adjournment has been generally granted and not for any special

purpose. On the other hand Rule 3 operates where the

adjournment has been given for one of the purposes mentioned

on the rule. While Rule 2 speaks of disposal of the suit in one of

the specified modes, Rule 3 empowers the Court to decide the

suit forthwith. The basis distinction between the two Rules,

however, is that in the former, any party has failed to appear at

the hearing, while in the letter the party though present has

committed any one or more of the enumerated defaults.

Combined effect of the Explanation to Rule 2 and rule is that a

discretion has been conferred on the Court. The power

conferred is permissive and not mandatory. The Explanation is

in the nature of a deeming provision, when under given

circumstances, the absentee party is deemed to be present.

26. In Ekkaladevi Devaiah Vs. Bojja Laxmi and others

11, this

Court after discussing the scope of Order XVII Rule 2 and 3 of

C.P.C. held that the decree and judgment passed by the trial Court

are only ex parte decree and judgment in terms of Rule 2 of Order

XVII of CPC read with proviso to Rule 3 of Order XVII of CPC (AP

amendment) and thereby the petition under Rule 13 of Order IX of

CPC is maintainable.

27. In this regard it is appropriate to have a look at Order XVII

Rule 2 of C.P.C. which reads thus:

10

AIR 2003 SC 3527 = 2003 (3) ALD (SC) 79

11

2017 (5) ALD 194

14

Order XVII Rule 2: Procedure if parties fail to appear on

day fixed.

Where, on any day to which the hearing of the suit is

adjourned, the parties of any of them fail to appear, the

Court may proceed to dispose of the suit in one of the modes

directed in that behalf by Order IX or makes such order as it

thinks fit.

Explanation: Where the evidence of a substantial portion of

the evidence of any party has already been recorded and

such party fails to appear on any day to which the hearing of

the suit is adjourned, the Court may, in its discretion,

proceed with the case as if such party were present.

28. A perusal of Rule 2 makes it clear that on any day to which

the hearing of the suit is adjourned, any of the parties fail to

appear, the Court may proceed to dispose of the suit in one of the

modes directed in that behalf under Order IX or makes such order

as it thinks fit and exception annexed to Rule 2 clarifies that where

evidence or a substantial portion of the evidence of any party has

already been recorded and such party fails to appear on any date

of hearing of the suit is adjourned, the Court in its discretion,

proceed with the case as if such party was present. Thus, it is clear

from the explanation that if a substantial portion of evidence of

any party has already been recorded, the Court can decide the

matter on merits by proceeding under any of the modes under

Order IX CPC in case where a party is absent in the courts, as

mentioned in Order XVII Rule 3(b) the Courts can proceed under

Rule 2. It is therefore, clear that when the defendants remained

absent, the Court has no option but to proceed under Rule 2.

Similarly, the language used under Rule 2 clearly lays down that if

anyone of the parties fails to appear, the Court has to proceed or

dispose of the suit in one of the modes directed under Order IX of

15

C.P.C. The explanation to Rule 2 conferred discretion on the Court

to proceed under Rule 3 even if a party is absent, but that

discretion is limited only in cases where a party who is absent has

led some evidence or has adduced substantial part of their

evidence. Thus, it is clear that if on a date fixed, one of the parties

remain absent and for that party no evidence has been adduced

upto that date, the Court has no option except to proceed and to

dispose of the matter in accordance with Order XVII Rule 2 in any

of the modes prescribed under Order IX of C.P.C.

29. In the case on hand the trial Court has proceeded the matter

as per Rule 3(b) of Order XVII of CPC as if there is substantial

evidence on record. It is pertinent to mention that P.W.1 was cross-

examined but P.Ws.2 and 3 were not cross-examined by the

learned counsel for the defendants. No evidence was let in on their

behalf. The Court below failed to consider amendment to Rule 3 of

Order XVII of C.P.C. whereby any default committed by any of the

parties either under Rule 2 or 3 of Order XVII CPC, the Court

below has to proceed under Rule 2 alone but not under Rule 3.

30. The Hon’ble Apex Court in Prakash Chandu Manchanda v.

Janaki Manchanda

12 held as follows:

“It is therefore clear that if on a date fixed, one of the parties

remain absent and for that party no evidence has been

Examined upto that date the Court has no option but to

proceed to dispose of the matter in accordance with Order 17

Rule 2 in any one of the modes prescribed under Order 9 of the

Code of Civil Procedure. It is therefore clear that after this

amendment in Order 7 Rules 2 and 3 of the Code of Civil

Procedure there remains no doubt and therefore there is no

possibility of any controversy”.

12

AIR 1987 SC 42

16

31. Learned single Judge of this Court has considered the scope

of Order XVII Rule 3 CPC in Mailwar Narsappa and Pendyala

Prabhakar v. B.Sangamma

13 held that

“From the above, it is evident that on 08.10.2012 the Court

below has set the appellants/defendants ex parte, but also

closed the evidence on the part of the defendants and after

hearing the arguments posted the suit for judgment and

pronounced the judgment on 11.10.2012. The whole

procedure adopted by the trial court on the said two crucial

dates, extracted above, clearly shows that the Court below

has violated the mandate of Order XVII Rule 2 C.P.C. and

without posting the suit for defendants’ evidence, the court

below straight away heard arguments and pronounced the

judgment. Moreover, the counsel for the defendants has not

cross-examined P.W.3, but reported no instructions. In law,

therefore, the defendants were not represented and any order

passed was clearly an ex parte order against the defendants.

This issue is squarely covered by a decision of the Supreme

Court in State of A.P. v. G.Ranghunayakulu (AIR 1987 SC

40), which authoritatively explained the provisions of Order

XVII Rule 3 C.P.C. The relevant portion is extracted

hereunder:-

“6. …. It is therefore clear that if on a date fixed, one of the

parties remain absent and for that party no evidence has

been examined up to that date the Court has no option but to

proceed to dispose of the matter in accordance with O.17 R.2

in any one of the modes prescribed under O.9, Civil P.C. It is

therefore clear that after this amendment in O.17 Rr.2 and 3,

Civil P.C. there remains no doubt and therefore there is no

possibility of any controversy. In this view of the matter it is

clear that when in the present case on 30.10.1985 when the

case was called nobody was present for the defendant. It is

also clear that till that date the plaintiff’s evidence has been

recorded but no evidence for defendant was recorded. The

defendant was only to begin on this date or an earlier date

when the case was adjourned. It is therefore clear that up to

the date i.e. 30.10.1985 when the trial Court closed the case

of defendant there was no evidence on record on behalf of the

13

2013 (6) ALD 499

17

defendant. In this view of the matter therefore the

explanation to O.17 R.2 was not applicable at all. Apparently

when the defendant was absent O.17 R.2 only permitted the

Court to proceed to dispose of the matter in any one of the

modes provided under O.9.

7. It is also clear that O.17 R.3 as it stands was not

applicable to the facts of this case as admittedly on the date

when the evidence of defendant was closed nobody appeared

for the defendant. In this view of the matter it could not be

disputed that the Court when proceeded to dispose of the

suit on merits had committed an error. Unfortunately even

on the review application, the learned trial Court went on in

the controversy about O.17, Rr.2 and 3, which existed before

the amendment and rejected the review application and on

appeal the High Court also unfortunately dismissed the

appeal in limine by one word.

32. In G.Ratna Raj (Dead) By Lrs. Vs Sri Muthukumarasamy

Permanent Fund Ltd. & Anr.

14 the Apex Court observed the scope

of Order XVII Rules 2 and 3 held that:

“We are, therefore, of the view that since the defendants were

proceeded ex parte and were found not to have led any

evidence in the suit, the Court could only proceed under Order

17 Rule 3 (b) read with Order 17 Rule 2 of the Code for

disposal of the suit by taking recourse to one of the modes

directed in that behalf by Order 9 of the Code or could have

made any other order as it thinks fit.

29. As mentioned above, the Trial Court did proceed to hear

the suit ex parte by taking recourse to the Order 9 Rule 6 (a) in

terms of Order 17 Rule 2 of the Code because on that day, the

plaintiff was present when the suit was called on for hearing

whereas the defendants were absent despite service of

summons and accordingly the Trial Court passed the

preliminary decree. Such decree, in our opinion, was an "ex

parte decree" within the meaning of Order 9 Rule 6 (a) read

with Order 9 Rule 13 of the Code and, therefore, could be set

14

In civil appeal 2582-2583 of 2011

18

aside under Order 9 Rule 13 on making out a sufficient ground

by the defendants.

From the perusal of the judgment impunged and the material

record, it is clear that though the Court below passed the

judgment on merits as per Order XVII Rule 2 of C.P.C. it is an

ex parte judgment but it cannot be termed as judgment which

is passed on merits.”

33. Taking into consideration the law laid down by the Hon’ble

Apex Court and this Court and the factual matrix of this case

where the evidence of only P.W.1 was adduced and no evidence

was let in by the defendants, the Court below proceeded to decide

the matter on merits. In view of the law laid down by the Hon’ble

Apex Court, the impugned decree and judgment is an exparte

decree, as such in the interests of justice, this Court deems it

appropriate to allow the appeal.

34. Accordingly I.A.No.1 of 2019 is allowed condoning the delay

of 717 days in preferring the appeal on the condition of appellants

paying an amount of Rs.10,000/- (Rupees ten thousand only)

towards costs to the respondent/plaintiff within two weeks from

the date of receipt of a copy of this judgment.

35. In the result, the Appeal is allowed by setting aside the

decree and judgment dated 23.08.2017 passed in O.S.No.88 of

2012 on the file of the Senior Civil Judge, Chirala, Prakasam

District and O.S.No.88 of 2012 is restored to file.

The defendants are permitted to cross-examine P.Ws.1 to 3

and they shall cooperate for the disposal of the suit. Since the suit

is of the year 2012 and the plaintiff being a senior citizen, the

Court below shall dispose of the suit as expeditiously as possible

19

preferably within six months from the date of receipt of a copy of

this judgment.

As a sequel, all the pending miscellaneous applications are

closed.

___________________________

LALITHA KANNEGANTI, J

25

th November, 2020

Note: LR copy to be marked

B/O

IKN / PVD

20

THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI

I.A.No.1 of 2019

in/and

APPEAL SUIT No.757 of 2019

25.11.2020

IKN / PVD