Justice B. Prakash Rao allowed three revisions petitions filed under Article 227, setting aside orders that dismissed applications to set aside an ex parte decree. The Court held that the lower court failed to examine the petitioner's reasons for absence.
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HON’BLE SRI JUSTICE B. PRAKASH RAO
C.R.P.Nos. 1444, 2327 and 2349 of 2008
DATE: 23-12-2010
C.R.P.No.1444 of 2008:
Between:
Bhupathiraju Venkata Narasimha Raju
…….. petitioner
and
Mutyala Sudhakar and others
…….. respondents
HON’BLE SRI JUSTICE B PRAKASH RAO
C.R.P.Nos. 1444, 2327 and 2349 of 2008
COMMON ORDER:
Since all these three Revisions Petitions arose out of the same proceedings and the parties are also one and the same, they are taken up together for disposal.
The petitioner herein, who is defendant No.3, filed these Revision Petitions under Article 227 of the Constitution of India, inter alia, assailing the orders, dated 13-03-2008 passed in I.A.Nos.224, 223 and 225 of 2003 respectively in O.S.No.39 of 2003 on the file of the Senior Civil Judge, Tadepalligudem, which were filed to set aside the ex parte decree; to reopen the suit for cross-examination of PWs.1 to 3, and to recall PWs.1 to 3 for the purpose of cross-examination respectively.
The brief facts are that on 04-02-2008 the petitioner was set ex parte and subsequently, three witnesses were examined. Later, on 1302-2008 the petitioner filed the above applications. However, the Court below dismissed the three applications mainly on the ground that the suit is an identified one and there is no evidence to show that the petitioner was held up at Hyderabad as mentioned in the affidavit
filed in support of the applications.
In the affidavit filed in support of these applications the petitioner has mentioned that he had gone to Hyderabad due to business reasons and held up there and that apart he was suffering from viral fever for the last two weeks and therefore, he was not able to contact his Advocate to contest the proceedings.
The Court below as stated above did not find favour with the reason and dismissed all the applications only because the suit is an identified one, but did not go into the correctness of the reason as given. On the face of it, the reason as shown by the petitioner cannot be found fault with nor can be doubted as such. Especially when the suit is one for recovery of money on the basis of the mortgage and the same is being contested by the petitioner, the Court below should have provided an opportunity to the petitioner to participate in the proceedings. Normally the Rules of practice are to aid the parties but not to punish them. Especially in the case of contesting proceedings, the endeavour should be to see that opportunity is provided rather than denying the same.
In the circumstances, the three Revision Petitions are allowed. The orders, dated 13-03-2008 passed in I.A.Nos.224, 223 and 225 of 2003 are set aside and consequently, those applications are allowed. No order as to costs.
________________ B PRAKASH RAO, J
Date: 23-12-2010 YCR
2 issues framed by the court
Whether the High Court should interfere when the lower court dismissed reconsideration applications without examining the merits of the petitioner's affidavit.
Whether a suit for recovery of money should provide an opportunity to the defendant to contest proceedings despite potential delays.
2 provisions across 1 enactments
Bhupathiraju Venkata Narasimha Raju
Mutyala Sudhakar and others
B Prakash Rao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
