The court ruled that an ex-parte order is interlocutory and barred from revision under the Commercial Courts Act, but the petitioner retains the right to participate in ongoing proceedings.

ORDER :

1. Heard Sri M. Rahul Chowdary, learned counsel representing Sri Ginjupalli Subba Rao, learned counsel for the petitioner and Sri Rosedar S.R.A. learned counsel for the respondent No. 1 in both the Civil Revision Petitions (CRPs).

2. The petitioner is defendant No. 1 in Company Suit (in short ‘COS’) No. 5 of 2023 on the file of the Special Court for Trial and Disposal of Commercial Disputes, Vijayawada (in short ‘Special Court’). The COS was filed by the plaintiff/respondent No. 1 herein. Respondent No. 2-Union Bank of India is defendant No. 2 in COS.

3. Learned counsel for the respondent No. 1 has placed before us a copy of the docket orders in COS, serving copy thereof to the learned counsel for the petitioner. There is no dispute on such dates as mentioned therein.

4. With the consent of the learned counsels for the parties, the CRPs are being decided finally at this stage.

Facts:

5. In COS, on 01.05.2023, defendant Nos. 1 & 2 were absent. There was no representation. Summons of D1 & D2 were not returned. Plaintiff was also absent. The matter was fixed for 10.05.2023, awaiting service of summons. As per order dated 10.05.2023, summons were not served on D1 & D2. The order was passed for issuing fresh summons fixing 22.06.2023.

6. The petitioner’s case is that the summons were served on 06.05.2023 after the date fixed i.e. 01.05.2023. Consequently he could not appear and the next date could not be known. He engaged the counsel sometimes in July 2023 and then he came to know that on 22.06.2023 an order to proceed ex-parte was passed against the petitioner/defendant No. 1 after holding that there was proper service of notice to him. The order to proceed Ex-parte against defendant No. 2 was also passed on 25.09.2023. The evidence of PW-1 was taken on record on 03.10.2023 and Ex.A1 to A38 were marked. The defendants remained absent. So cross-examination was treated as ‘nil’. The plaintiff’s counsel reported no further evidence. The evidence was closed and the matter was fixed for arguments on 06.10.2023. On 06.10.2023, the plaintiff’s counsel was heard. Counsel for D1 filed vakalat but there was no representation for the defendant No. 1 at the time of arguments. The matter was posted for judgment, fixing 16.10.2023.

7. On 16.10.2023, the Presiding Officer was on official duty (O.D.) the matter was posted to 30.10.2023. The petitioner filed two IAs i.e. I.A. No. 170 of 2023 to reopen COS No. 5 of 2023 under Section 151 of Code of Civil Procedure (CPC) and I.A. No. 171 of 2023 to set aside the ex-parte order dated 22.06.2023, under Order 9 Rule 7 CPC.

8. During the pendency of the applications, I.A. Nos. 170 & 171 of 2023, the Presiding Officer was transferred. New Presiding Officer joined. The judgment was not pronounced by the previous Presiding Officer. On 09.08.2024 both the applications were dismissed by common order and the COS was posted for hearing of the plaintiffs, fixing 16.08.2024. On that date, at request of the plaintiff side, the matter was posted for 20.08.2024 for ex-parte evidence. On 20.08.2024, the plaintiff represented that he was ready for evidence. However, the docket order dated 30.08.2024 showed that the plaintiff’s evidence had already been recorded as PW1 on 3.10.2023 and Ex.A1 to Ex.A38 were already marked. The plaintiff reported no further evidence. The Court posted for arguments on plaintiff side fixing 09.09.2024.

9. The docket order dated 30.08.2024 is as under:

“Plaintiff present. Both sides represented before this Court. The record shows that the evidence of plaintiff was already recorded as PW-1 on 03.10.2023 and Exs.A1 to A38 were marked. The plaintiff reported no further evidence.

The learned counsel for the defendant filed a memo along with case status of Hon’ble A.P High Court stating that they preferred revision against the orders in IAs. 170 and 171 of 2023 and also mentioned that CRP Nos. 1933 and 1934 of 2024 were given and they are yet to be listed and sought for adjournment.

The learned coun