Allowed

K.Bheem Shanker v. Chavan Namdev

Telangana HC8 Nov 2017CMA/1068/2006

Case brief

AI extract

What is this about?

In Civil Miscellaneous Appeal No. 1068 of 2006, the High Court of Hyderabad allowed the appeal against an order dismissing an application to set aside a default judgment. The court held that the order was effectively ex-parte and addressable under Order-9, Rule-13.

What did the court decide?

Impugned orders dated 27/09/2006 allowed. CMA restored to file. Trial court directed to proceed and dispose case at early date.

K.Bheem Shanker Vs Chavan Namdev — Civil Procedure and Limitation | Telangana HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT HYDERABAD

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FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH

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[ Special Original Jurisdiction ]

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WEDNESDAY THE EIGHTH DAY OF NOVEMBER TWO THOUSAND AND SEVENTEEN

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PRESENT

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HONOURABLE JUSTICE D.V.S. S. SOMAYAJULU

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CMA.No. 1068 OF 2006

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Between:

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K. Bheem Shanker & Anr. … Appellants
V/s.
Chavan Namdev … Respondent
Counsel for the appellants : Sri K. B. Ramanna Dora

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Counsel for the Respondent : Sri Palle Sriharinath

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The court made the following: [Judgment follows]

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HONOURABLE JUSTICE D.V.S.S. SOMAYAJULU

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CMA.No. 1068 OF 2006

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J U D G M E N T :

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This is an appeal filed against the orders dated 27/09/2006

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passed in I.A.No. 537 of 2006 in M.V.OP.No. 42 of 2002 by the II-

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Additional District and Sessions Judge [FTC], Medak at Sanga Reddy.

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The brief facts of the case are that MV.OP.No. 42 of 2002 is

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filed under the provisions of the Motor Vehicles Act, claiming

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compensation for the fracture of both bones of right leg, contusion and

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abrasions over the body of respondent-claimant in a motor vehicle

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accident occurred on 13/4/1998 at 14:00 hours near Shivampet village

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outskirts.

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When the matter is posted to 11/8/2006 for the evidence of

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the respondents, as the counsel for the respondents sought time to

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introduce the evidence, due to personal inconvenience. The learned

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trial court closed his evidence, heard the matter and proceeded to

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pronounce the judgment on merits. Within thirty days therefrom the

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respondents filed I.A.No. 537 of 2006 in MV.OP.No. 42 of 2002 under

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Order-9, Rule-13 read with section 151 of CPC to set aside the judgment

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and decree passed in OP.No. 42 of 2002, dated 11/8/2006. However,

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the trial court held that the said order is passed is not an ex-parte order

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and that there are substantial evidence on record, therefore, the trial

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court held that the petition is not maintainable and hence the same is

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dismissed. Aggrieved by the said order, the present Civil Miscellaneous

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Appeal is filed.

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Heard the learned counsel for the appellants and the learned

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counsel for the respondent.

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The short and simple point that arises for consideration in this

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case is that whether the order dated 11/8/2006 is an order having the

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effect defence evidence ex-parte. The learned counsel for the

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respondent argued that it is not an ex-parte order and it is an order

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under Order- 17 [3], Rule-2 of CPC which empowers the Court to

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proceed with the matter in the absence of the parties or their counsel.

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On the other hand, learned counsel for the appellants argued

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that the petition under Order-9, Rule-13 of CPC is maintainable and that

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the order 17 itself directs the Court to proceed under Order-9.

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Consequently he states that the application under Order-9, Rule-13 of

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CPC is maintainable.

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Learned counsel also relied upon the two judgments of the

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learned Single Judge of this Court reported in NAMBURI CHENNA

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REDDY AND ORS. V/s. DEVIREDDY KOTA REDDY AND ORS¹ , and

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SATYAMMA AND ANR. V/s. G. LALITHA BAI² .

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Heard, perused the material placed on record. It is clear that

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11/8/2006 the trial court passed the following order :

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“ After hearing arguments of both sides this Court come to conclusion that already reasonable opportunity was given for adducing evidence of petitioner/respondent. Petitioner/respondent counsel not pursued the case and there is no representation on their behalf. Once vakalath is filed, it is duty of the counsel to follow up the case.”

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“ The petitioner/respondent counsel filed this petition after a gap of one month clearly shows that the petitioner/respondent has not pursued the case even after 11/8/2006. In this O.P. already PW-1 and PW-2 were examined, the petitioner/respondent crossexamined them, then how can the order of this Court is ex-parte order. The citations filed by the petitioner/respondent counsel not at all relevant to this case. The facts of the case are different and not at all applicable to this case, I hold that the order passed by this Court is not an ex-parte order .”

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