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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
B.S.BHANUMATHI, J.
G. Saraswathi – Appellant
Versus
G. Malleswari – Respondent
Civil Revision Petition No.2467 of 2019
Decided On : 04-11-2022
Constitution of India, 1952 – Article 227 – Civil Procedure Code, 1908 – Order IX Rule 13 – Civil revision petition, under Article 227 of Constitution of India, is directed against order, allowing I.A. in O.S. on file of Court of Principal Junior Civil Judge, filed under Order IX Rule 13 CPC to set aside ex parte decree and judgment, passed against defendant – Held, Even when defendant filed petition under Order IX Rule 13 CPC, she has not filed her written statement along with it to show her bona fides – It is only after 1 ½ years, after filing petition, written statement was filed, and that too, with all mere denials of the averments made in plaint and no case of her own is spelt out – Written statement also appears to be very casually pleaded, just for sake of defence stating that husband of defendant cannot have right to dispose of entire schedule property in favour of plaintiff without obtaining valid consent of defendant in this suit – Suit is filed for perpetual injunction. Considering all above facts and circumstances, this Court is of view that trial Court erred in allowing petition without recording its observation that petitioner could establish sufficient reason for setting aside ex parte decree, and therefore, order impugned is liable to be set aside – Civil Revision Petition allowed.
ORDER:
This civil revision petition, under Article 227 of the Constitution of India, is directed against the order, dated 23.07.2019, allowing I.A.No.1140 of 2018 in O.S.No.614 of 2016 on the file of the Court of Principal Junior Civil Judge, Ananthapuramu, filed under Order IX Rule 13 CPC to set aside the ex parte decree and judgment, dated 28.02.2017, passed against the defendant.
2. Heard Sri V. Nitesh, learned counsel for the revision petitioner/respondent/plaintiff and Sri Harish Kumar Rasineni, learned counsel for the respondent/petitioner/defendant.
3. The facts, in brief, are as follows:
(b) The respondent filed counter opposing the petition and stating that the petitioner was set ex parte on 14.12.2016. The present suit was filed on 12.08.2016. Thereafter, the matter underwent several adjournments, i.e., 14.09.2016, 19.10.2016, and 14.12.2016 for filing written statement. On 14.12.2016, as the defendant has not filed her written statement, she was set ex parte. Subsequently, the suit was posted to 31.01.2017 for evidence of plaintiff; and, on 15.02.2017, the evidence of PW1 was recorded and the matter was posted to 27.02.2017 for judgment. Accordingly, on 28.02.2017, judgment was pronounced. In spite of granting several opportunities, the petitioner never tried to contest the matter and after grant of number of adjournments, she has filed the present petition intentionally to drag on the proceedings in the suit. No reasons are assigned for not filing the written statement within time. The petitioner has not enclosed her written statement even to the petition seeking to set aside the ex parte decree. After a lapse of one and half year, the petition was re-presented which shows that the petitioner is not diligent in prosecuting the case. There are no merits. The petition is filed only to harass the respondent. The petition is liable to be dismissed.
4. On merits, the trial Court allowed the petition holding that no prejudice would be caused to the respondent/plaintiff if the petition is allowed.
5. The aggrieved plaintiff, preferred this revision petition contending that the order of the trial Court, if allowed to stand, would cause irreparable loss to the plaintiff and that the trial Court ought not to have allowed the petition as the defendant was not diligent in prosecuting the matter in spite of granting several adjournments.
6. Though, while dealing with petition under Order IX Rule 13 CPC, sufficiency of the cause for not being able to represent the matter on the relevant date shall be examined, the past conduct and participation of the defendant cannot be ignored altogether. The petitioner has filed the petition to set aside the ex parte decree, dated 28.02.2017, within 30 days, i.e., on 02.03.2017. But, not only on 28.02.2017, even earlier also, the petitioner has not shown interest in prosecuting the matter. It is represented that the petitioner has filed caveat before filing of the suit and there was also exchange of notices before filing of the caveat and though he filed appearance on 19.08.2016 on receipt of service of documents in the suit, written statement was not filed till 14.12.2016 and thus, she was
Setting aside ex-parte decree – Real test for adjudication of a petition under Order IX Rule 13 CPC is whether litigant upon learning about ex-parte decree takes immediate steps in filing application....
No limitation under Article 137 for Order IX Rule 7 CPC; ex parte parties may participate in ongoing proceedings if good cause shown.
The main legal point established in the judgment is the need for a liberal and sensitive approach by the courts in setting aside ex parte decrees, considering the circumstances of the defendant and t....
The concept of 'sufficient cause' under Order IX Rule 13 CPC must be judged objectively, and the party seeking to set aside an ex-parte decree must provide a reasonable cause for their non-appearance....
The failure to file an application for condonation of delay when seeking to set aside an ex parte decree under Order IX Rule 13 CPC is a fatal procedural defect, leading to dismissal of the applicati....
The court emphasized the liberal construction of 'sufficient cause' for setting aside an ex parte decree and the need to balance the interests of both parties to prevent miscarriage of justice.
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