APHC010159182018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3506] MONDAY, THE ELEVENTH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN CIVIL MISCELLANEOUS APPEAL NO: 310/2018 AND CIVIL REVISION PETITION No.2090 of 2018 C.M.A.No.310 of 2018 Between: 1. P.SUBRAMANYAM, S/O.MUNENDRA, R/O.D.NO.9-102, AMARAVATHI NAGAR,TIRUPATI,CHITTOOR DISTRICT ...APPELLANT AND 1. T.YOGAGANANDA REDDY, S/o.T.Sidda Reddy, R/o.D.No.15/103-4A,Padmavathi Nagar, Tirupati,Chittoor District ...RESPONDENT Appeal under Order 43 Rules 1 and 2 CPC is filed aggrieved by the decree and orders dt.26-12-2017 made in IA.No.102 of 2016 in OS.No.54 of 2015 on the file of the IV Additional District Judge,Tirupati,Chittoor District. Counsel for the Appellant: 1. O UDAYA KUMAR Counsel for the Respondent: 1. SURESH KUMAR REDDY KALAVA The Court made the following: 2 CGR, J. CMA No.432 of 2024 & CRP No.1260 of 2024 THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN Civil Miscellaneous Appeal No.310 of 2018 & Civil Revision Petition No.2090 of 2018 COMMON JUDGMENT: Both C.M.A. as well as C.R.P. arise out of common order, dated 26.12.2017, rejecting I.A.No.102 of 2016 in O.S.No.54 of 2015 on the file of IV Additional District Judge, Tirupati, filed under Order IX Rule 13 and Section 151 CPC, for setting aside ex parte decree, dated 07.01.2016 and I.A.No.507 of 2017 filed under Section 151 CPC for receiving written statement at the instance of unsuccessful defendant/appellant herein, therefore, are heard together and decided by this common judgment. 2. For the sake of convenience, parties herein are referred to as they were arrayed in the Suit before the trial Court. 3. Brief facts of the case are as follows: (a) Plaintiff filed O.S.No.54 of 2015 on the file of the IV Additional District Judge, Tirupati, for recovery of Rs.10,38,340/- with interest at the rate of 24% p.a. and costs based on promissory note alleged to have executed by the defendant on 05.12.2013. Sole defendant in Suit received summons and entered appearance 3 CGR, J. CMA No.432 of 2024 & CRP No.1260 of 2024 through counsel on 26.08.2015 and sought time for filing written statement. Matter was adjourned for couple of times and fewer times on costs for filing of written statement. As neither written statement came to be filed nor was there any appearance, defendant was set ex parte on 28.12.2015. Ultimately, Suit was proceeded with and got decreed ex parte on 07.01.2016. Within 30 days thereafter, defendant field I.A. No.102 of 2016 on 07.02.2016 under Order IX Rule 13 CPC for setting aside of ex parte decree. Thereafter, nearly after more than a year, defendant filed O.A.no.507 of 2017 seeking leave of the Court to receive written statement. (b) Plaintiff, respondent in aforesaid respective I.As. filed detailed counter opposing the same. (c) In the counter, it has been stated that defendant entered appearance in the Suit on 26.08.2015 through counsel and later at their request matter was adjourned to 01.10.2015, 30.10.2015 and 11.12.2015 on costs and to 28.12.2015 again on costs, as even costs were also not paid on both occasions, defendant was set ex parte on 28.12.2015. Later it was adjourned to 31.10.2015, 05.01.2016 and ultimately on 07.01.2016 the Suit was decreed based on the evidence let in. Though in the application, defendant pleaded that he was undergone treatment in Tamil Nadu for jaundice, no medical 4 CGR, J. CMA No.432 of 2024 & CRP No.1260 of 2024 certificate or any evidence in support of the same has been placed on record, the reasons shown were not bona fide and constitute sufficient cause for their absence in pursuing the Suit, therefore, sought for dismissal of the I.As. (d) The trial Court after considering the submissions of both the learned counsel, ultimately, by impugned common order, dated 26.12.2017, dismissed both the aforesaid applications by holding that defendant has not shown any sufficient cause to exercise powers under Order IX rule 13 CPC and also that the conditional orders passed earlier for adjourning the matter enabling to file written statement, were also not complied with, therefore, it was hit by Section 35(B)(1)(a) of CPC. Assailing the same, present appeal and revision are preferred by the defendant. 4. Heard Ms.K.Salini, learned counsel, representing Sri O.Udaya Kumar, learned counsel for the appellant/defendant and Sri Y.V.S.S. Dharaneesh, learned counsel, representing Sri Suresh Kumar Reddy Kalava, learned counsel for the respondent/plaintiff. 5. Learned counsel for the appellant submits that though the defendant has pleaded in the I.A. that he was prevented from filing written statement on account of medical reasons, the Court below 5 CGR, J. CMA No.432 of 2024 & CRP No.1260 of 2024 rather than considering such request positively has taken extreme measure of rejecting the application and in as much as the Suit is decreed ex parte, the defendant is deprived of fair trial on merits of the matter. She further submits that as defendant has already filed written statement, though belated, denying the suit transaction, the defendant fairly has good case to succeed in the Suit, therefore, rather than going on technicalities, the trial Court ought to have allowed the application on certain terms. 6. Per contra, learned counsel for the respondent/plaintiff tried to justify the order impugned by contending that the parameters enunciated under Order IX Rule 13 CPC were clearly not made out in the present case, therefore, rightly the trial Court has rejected the application. The defendant was given enough time, even couple of occasions their request for filing written statement was accommodated on payment of costs of Rs.100/- and Rs.50/- respectively, which was not even complied with, therefore, having no other go, the trial Court has set the defendant ex parte on 28.12.2015, which cannot be found fault with. The so called reason stated in the affidavit that defendant was suffering with jaundice and therefore, underwent treatment at Tamil Nadu is only invented for the purpose of present application, as there is no medical certificate or details of 6 CGR, J. CMA No.432 of 2024 & CRP No.1260 of 2024 treatment availed to believe the same. Therefore, the order passed by the trial Court is based on sound reasons and hence, requires no interference. 7. Perused the record and considered the rival submissions of both the learned counsel. 8. The Suit was initially instituted by plaintiff for recovery of Rs.8,00,000/- with interest which apparently was based on pronote, dated 05.12.2013. The said Suit came to be instituted after issuing the legal notice, dated 30.10.2014 and also dishonour of cheque as well. It is not in dispute that the defendant was served with summons and first appearance was made on 26.08.2015. Counsel appearing for the defendant sought for time for filing written statement and the matter was adjourned to 01.10.2015, yet again 30.10.2015 and yet again to 11.06.2015, on costs of Rs.100/-. Costs were not paid, however, again it was adjourned to 28.12.2015 yet on condition of further costs of Rs.50/-, even the said costs were not paid. Therefore, the trial Court has set defendant ex parte on 28.12.2015, thereafter, the Suit was decreed on 07.01.2016. Aforesaid dates or non- payment of costs are not in dispute. After the Suit was decreed ex parte, the defendant has come up with I.A.No.102 of 2016 though 7 CGR, J. CMA No.432 of 2024 & CRP No.1260 of 2024 within 30 days of the order. In the affidavit filed in support of the said application, the defendant prayed the following: “3. I submit that I am suffering with jaundice and hence I went to Walaji of Tamilnadu to take country made treatment and held up there. Due to the said reason only I am unable to contact my counsel to give instructions to him to prepare the written statement. There is no wilful or wanton negligence on my part. Two days ago, when I contacted my counsel to know the stage of the case at that juncture I came to know about passing of ex parte decree against me. Hence, this petition. I have got very good case on merits if an opportunity is not given for me to set aside the decree I will be put to serious loss and hardship. To prove my bona fides I am herewith filing the written statement with this petition. 4. It is, therefore, prayed that the Hon’ble Court may be pleased to set aside the ex parte decree passed against me on 07.01.2016 and permit me to contest the case or else I will be put to serious loss and hardship.” 9. The reasoning given in aforesaid paras was denied by the plaintiff in the counter and ultimately, the trial Court has rejected the said reasons on two counts. Firstly, that the defendant was given sufficient time initially and later on even on costs and that the costs were not paid, which itself disentitles the defendant to prosecute the Suit further. Secondly, that though defendant pleaded medical reasons, in the absence of any proof to show that he was suffering from jaundice, the said reasons came to be rejected. 10. Learned counsel for the appellant tried to persuade this Court based on reasons mentioned in para.3. Absolutely no justification is forthcoming as to why costs imposed on two occasions i.e. on 8 CGR, J. CMA No.432 of 2024 & CRP No.1260 of 2024 30.10.2015 and 11.12.2015 have not been complied with. Further, except for self-serving statement that defendant was undergoing treatment, there is no medical evidence in support of the same either by way of doctor certificate or medical record as diagnosed, therefore, it is hard to believe the said reasons. This Court is only now testing as to whether the findings recorded by the trial Court in coming to the conclusion of rejecting the applications suffer from any infirmity or not. The reasons given in the opinion of this Court do not suffer from any infirmity. Therefore, this Court finds no merit. 11. Accordingly, both the C.M.A. and the C.R.P. are dismissed without costs. As a sequel, miscellaneous petitions pending consideration, if any, in this case shall stand closed. _____________________________ JUSTICE CHALLA GUNARANJAN Date:11.08.2025. cs