Allowed

Padala Satyanarayana (died) v. Smt. Bollu Indira Devi (Died)

Telangana HC1 Apr 2010CRP/1459/2009

Case brief

AI extract

What is this about?

This court allowed a civil revision petition setting aside an ex parte decree and appellate order. The court found defendants were physically present but incorrectly set aside for non-participation. The suit was restored to file on merit after defendants paid costs.

What did the court decide?

The impugned orders and ex parte decree were set aside; the suit restored to file; petitioners directed to pay costs of Rs. 1000 to respondents within four weeks.

Padala Satyanarayana (died) Vs Smt. Bollu… — Contract and Commercial Disputes | Telangana HC (2010)

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THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY

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CIVIL REVISION PETITION No.1459 OF 2009

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DATED: 01-04-2010

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Between: Padala Satyanarayana (died) & others.

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..... PETITIONERS

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And

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Smt.Bollu Indira Devi (died) & others.

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.....RESPONDENTS

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ORDER:

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This Civil Revision Petition is directed against the order, dated 31-05-2008, in C.M.A.No.3 of 2005 on the file of the Principal District Judge, Vizianagaram, wherein the said appeal filed by the petitioners herein assailing the order, dated 27-10-2004 in I.A.No.2357 of 1988 in O.S.No.556 of 1983 on the file of the Principal Junior Civil Judge, Vizianagaram, was dismissed.

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2. Heard learned counsel on either side. Perused the record.

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3. Petitioners herein are the defendants. Respondents-plaintiffs filed the suit for recovery of money from the appellants-defendants. (It is stated by the learned counsel that it is incorrectly noted as ‘specific performance’ in the impugned order).

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4. Petitioners-defendants filed written statement contesting the suit. During trial, P.W.1 was examined in chief and the matter was coming up for his crossexamination. It is not disputed that on 01-09-1988 suit was dismissed for default and the plaintiffs filed I.A.No.1370 of 1988 and the same was allowed and the suit was restored to file. Petitioners-defendants alleged that the said application is allowed without giving any notice to them. Be that as it may, the suit has since been restored to file

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and the matter is coming up for cross-examination of P.W.1 and it stood posted to

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01-12-1988 for the said purpose. On that day, defendants were set ex parte, and ex parte decree was passed on the ground that the defendants were not ready to crossexamine P.W.1. Defendants filed I.A.No.2357 of 1988 for setting aside the ex parte decree. By an order, dated 2710-2004, the learned Principal District Munsif, Vizianagaram dismissed the said application. The defendants preferred an appeal in C.M.A.No.3 of 2005 and the learned District Judge, Vizianagaram by the impugned order, dated 31-05-2008, dismissed the said appeal. Hence, the present Criminal Revision Case by the defendants.

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5. The crucial question to be considered is whether or not the defendants were present in the Court on 01-12-1988 when the matter was coming up for crossexamination of P.W.1. The defendants asserted that they are present in the Court on 01-12-1988 and still they were set ex parte. The learned District Judge observed in the impugned order as follows:

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“No doubt, the appellant was present on 01-12-1988 and when he was not ready he ought to have filed petition for adjournment or requested the Court for adjournment. He fails to take

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adjournment for the next day. Though he was present, reason for not crossexamining the witness and not proceeding with the matter not explained by the appellant”.

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6. The above observation in the impugned order would show that the defendants were present physically in the Court on 01-12-1988. The learned District Judge further observed that the defendants failed to seek any adjournment when they were not ready to cross-examine the witnesses. When once it is shown that the defendants are present in the Court, the question of setting them ex parte does not arise. If the defendants were ready to proceed with the matter further, the trial Court ought to have noted the cross-examination of P.W.1 as ‘nil’ and posted the matter for further evidence, if any, and in the absence of such further evidence, ought to have passed judgment on merits based on the material available on record. The question of setting the defendants ex parte or passing an ex parte judgment or decree under those circumstances does not arise. It is stated by the learned counsel for both parties that the decree passed by the trial Court was an ex parte decree.

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7. In the circumstances, it is considered that the impugned orders of the trial Court and also the First Appellate Court are not sustainable and they are liable to

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be set aside and accordingly they are set aside. It is also considered just and proper that an opportunity be given to the defendants to participate in the trial so that the suit can be disposed of on merits. However, having regard to the fact that the suit is of the year 1983 and had a long checkered career, it is considered that the respondents be compensated by the petitioners-defendants by payment of costs and also that a time frame be fixed for the disposal of the case.

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8. In the circumstances, it is held that the impugned order be set aside and the consequential ex parte decree passed in the suit be set aside and the matter be restored to file, subject to the condition that the petitionersdefendants shall pay costs of Rs.1000/- ( rupees one thousand only) to the respondents-plaintiffs within a period of four weeks from today. On such payment, the ex parte decree passed in the suit stands set aside and the trial Court is directed to dispose of the suit on merits within a period of four months thereafter. It is needless to state that both parties shall cooperate in the expeditious disposal of the suit. Having regard to the fact that the suit is of the year, 1983 and in the event of any of the parties not being ready to proceed with the mater, it is open to the trial Court to pass appropriate orders as per law.

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9. In the result, Civil Revision Petition is allowed. There

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shall be no order as to costs.

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_______________________ G.V.SEETHAPATHY, J

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01^st April, 2010. Tsy

Padala Satyanarayana (died) v. Smt. Bollu Indira Devi (Died)

Case brief

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Padala Satyanarayana (died) v. Smt. Bollu Indira Devi (Died)

Case brief

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