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Velavala Subbayya Vs. Gazula Bapayya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberA.A.O. No. 29 of 1949
Judge
Reported inAIR1950Mad294
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 13
AppellantVelavala Subbayya
RespondentGazula Bapayya and ors.
Appellant AdvocateP. Satyanarayana Raju and ;P. Ramachandra Raju, Advs.
Respondent AdvocateP.V. Chalapathi Rao, Adv.
DispositionAppeal allowed
Cases ReferredAiyar v. Sub
Excerpt:
- - despite the agreement of the parties the learned subordinate judge did not find it just to grant the adjournment and rejected that application as well. 3. we are not satisfied that the action of the learned judge in summarily rejecting the evidence of these witnesses would be justified. , are sufficiently elastic to cover a case of this kind and in our opinion the lower court would have been well advised in having restored the suit and made the defendant pay the day's costs of the plaintiff, if the plaintiff had opposed the adjournment......and could not be supported. this appeal arises out of an application to sat aside an ex parte decree passed on 13th july 1948 by the subordinate judge, tenali, in o. s. no. 69 of 1917 on his file. the appellant here was defendant 1 before the lower court in which the suit was filed on 9th october 1917. it is unnecessary for us to consider the stages or the progress of the litigation between that date and 11th july 1918. on the 11th respondent-plaintiff asked for an adjournment of the suit by means of a written application. the appellant-defendant not only did not demur to the adjournment, but consented to have the adjournment as prayed for by the plaintiff. when that application came up on 12th july 1948, the learned subordinate judge found no sufficient reason for granting.....
Judgment:

Govinda Menon, J.

1. We are of opinion that the order of the lower Court is, on the face of it, unjustifiable and could not be supported. This appeal arises out of an application to sat aside an ex parte decree passed on 13th July 1948 by the Subordinate Judge, Tenali, in O. S. No. 69 of 1917 on his file. The appellant here was defendant 1 before the lower Court in which the suit was filed on 9th October 1917. It is unnecessary for us to consider the stages or the progress of the litigation between that date and 11th July 1918. On the 11th respondent-plaintiff asked for an adjournment of the suit by means of a written application. The appellant-defendant not only did not demur to the adjournment, but consented to have the adjournment as prayed for by the plaintiff. When that application came up on 12th July 1948, the learned Subordinate Judge found no sufficient reason for granting the postponements asked for and the same was rejected. In the meanwhile on 12th July 1948, the appellant wrote a letter and sent it through P. W. 3 to his counsel in Tenali to the effect that on account of his father's Sradha ceremony he could not attend Court on 13th July 1948 and prayed that an adjournment of two days may be grant-ed. The counsel accordingly filed a written application and the same came on for hearing on the 13th itself apparently earlier in the day when the learned Judge would be disposing of miscellaneous application. At that time the plaintiff's counsel did not oppose request of the defendant for the postponement and must have agreed to the postponement. Despite the agreement of the parties the learned Subordinate Judge did not find it just to grant the adjournment and rejected that application as well. Probably a little later in the date, nearly an hour later, or more or less about that time, the suit was called on for hearing and since the defendant or his witnesses were absent the suit was decreed ex parte.

2. At about 1 P. M. the appellant reached Tenali and proceeded to his counsel and on the same date itself filed an application for setting aside the ex parte decree, whose rejection caused the above appeal.

3. The learned Judge found that the evidence on behalf of the appellant, namely, that of himself, examined as P. W. 1, that his Purohit P. W. 2, and that of the carrier of the letter P. W. 3 cannot be accepted. The learned Subordinate Judge was impressed with the testimony of R. W. 1 and accepting this solitary evidence of R. W. 1 and rejecting that of the prosecution witnesses, found that there was no justifiable or sufficient cause for the absence of the defendant when the case was called on for hearing and therefore refused to set aside the ex parte decree. The learned Judge has given various reasons why he did not accept the testimony of P W. 1. He says, if as a matter of fact, P. W. 1 had his father's ceremony on the 13th, the definite date should have been mentioned in the letter and moreover the ceremony itself would not have been taken more than a few minutes, and therefore, it would have been possible for him to attend Court in time. The learned Judge did not believe the evidence of P. W. 2 or that of P. W. 3. We are not satisfied that the action of the learned Judge in summarily rejecting the evidence of these witnesses would be justified. Mr. P.V. Chalapathi Rao, for the respondent, invites our attention to Order 9, Rule 13 and contends that 'sufficient cause' within the meaning of that rule has not been proved to the satisfaction of the Court and as the trial Court did not derive satisfaction, this Court could not in appeal interfere. He also argued that the facts and circumstances indicate that there was misconduct or gross negligence on the part of the defendant and that was the reason why he did not attend Court on 13th July 1948. The observations of Sir Walter Sails Schwabe C. J. in Arunachala, Aiyar v. Sub-baramiah, 46 Mad. 60 : A. I. R. 1923 Mad. 63 were also relied upon.

4. Having given the matter our serious consideration it seems to us that none of the reasons on which the learned Judge relies for refusing to set aside the ex parts decree are valid-ones. It may be that the appellant would not have stated in his letter the exact date when his father's ceremony took place. Mere absence of the exact date from the letter, by itself, cannot show that the letter was a fabricated one or got up for the purpose of this case. That such could not be the case is proved by the fact that the advocate himself got the letter on the 13th and proceeded to file the application on that basis. If the evidence of R. W. 1 to the effect that the appellant reached Tenali at about 10 A. M. is correct, there is no reason explained as to why the appellant should keep out from his lawyer and Court till 1 P.M. till the suit has been decreed ex parte. After all, as one of us pointed out in the course of the arguments, the delay was only an hour inasmuch as the time that elapsed between the passing of the ex parte decree and the filing of the application for restoration could not have been more than an hour. It is difficult for us to impute any kind of mala fides, negligence or misconduct on the part of the defendant who came to Court within an hour of passing this decree without more justifiable materials being placed before the Court. In these circumstances we are of opinion that the learned Judge was wrong in refusing to set aside the ex parte decree. The words 'sufficient cause' in Order 9, RULE 13, Civil P. C., are sufficiently elastic to cover a case of this kind and in our opinion the lower Court would have been well advised in having restored the suit and made the defendant pay the day's costs of the plaintiff, if the plaintiff had opposed the adjournment. But as matters stood the plaintiff himself wanted an adjournment. He did not oppose the adjournment application and such being the case, even the panacea by way of costs the plaintiff could not be entitled to.

5. In these circumstances we set aside the decision of the lower Court and direct that O. S. No. 69 of 1947 be restored to file to its original number in the Court of the Subordinate Judge of Tenali and be disposed of after trial on its merits. The appeal is accordingly allowed. Each party will bear his costs in this appeal.


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