APHC010263762025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3506] TUESDAY, THE NINTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN CIVIL MISCELLANEOUS APPEAL NO: 432/2025 Between: 1. REDDI SRIRAMULU,, S/O. LATE SURI RAMULU, AGED ABOUT 42 YEARS, OCC- CULTIVATION, R/O. VENKATAPURAM VILLAGE, NELIMARLA MANDAL, VIZIANAGARAM DISTRICT. ...APPELLANT AND 1. VALLE DALAMUMA, W/O. NARASIMHAMURTHY, AGED 50 YEARS, OCC- HOUSEHOLD DUTIES, R/O. D.NO. 2-10, PISINI VILLAGE, RANASTALAM MANDAL, VIZIANAGARAM DISTRICT. 2. VALLE LAKSHMI, W/O. RAMINAIDU, AGED 35 YEARS, OCC- HOUSEHOLD DUTIES, R/O. D.NO. 2-7, PISINI VILLAGE, RANASTALAM MANDAL, VIZIANAGARAM DISTRICT. 3. CHUTTURI ARUNA, W/O. RAMU, AGED 32 YEARS, OCC- HOUSEHOLD DUTIES, R/O. D.NO. 3-2, PISINI VILLAGE, RANASTALAM MANDAL, VIZIANAGARAM DISTRICT. 4. KALYANAPU VARALAKSHMI, , W/O. VASU, AGE 45 YEARS, OCC- HOUSEHOLD DUTIES, R/O. D.NO. 3-4, PISINI VILLAGE, RANASTALAM MANDAL, VIZIANAGARAM DISTRICT. 5. KALYANAPU LAKSHMIKANTHAM, W/O. SURYANARAYANA, AGED 35 YEARS, OCC- HOUSEHOLD DUTIES, R/O. D.NO. 3- 5, PISINI VILLAGE, RANASTALAM MANDAL, VIZIANAGARAM DISTRICT. 2 CGR, J. C.M.A.No.432 of 2025 6. REDDI SUM RAMULU, (DIED) 7. REDDY KRISHNAM NAIDU, S/O. SURI RAMULU, AGED 44 YEARS, OCC- CULTIVATION, R/O. D.NO. 3-44/29, MIDHILAPURI, VUDA COLONY, OLD MADHURAWADA, VISAKHAPATNAM DISTRICRT. 8. REDDY CHINNARAO, S/O. SURI RAMULU, AGED 42 YEARS, OCC- CULTIVATION, R/O. D.NO. 3-44/56, MIDHILAPURI, VUDA COLONY, OLD MADHURAWADA, VISAKHAPATNAM DISTRICT ...RESPONDENT(S): Appeal under Order 41 Rule 1 CPC is filed aggrieved by the order, dated 25.03.2025, passed in I.A.No.626 of 2024 in O.S.No.103 of 2018 on the file of the Court of the III Additional District and Sessions Judge, Srikakulam District. Counsel for the Appellant: 1. CHINNALA PRAVEEN Counsel for the Respondent(S): 1. MANIKANTA THOTA 2. T V S PRABHAKARA RAO The Court made the following: 3 CGR, J. C.M.A.No.432 of 2025 THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN C.M.A.No.432 of 2025 JUDGMENT: Present appeal, under Order 43 Rule 1 CPC, is preferred by appellant, 3rd defendant in Suit, aggrieved by the order, dated 25.03.2025, passed in I.A.No.626 of 2024 in O.S.No.103 of 2018 on the file of the III Additional District and Sessions Judge, Srikakulam, by which, the application of appellant/3rd defendant filed under Order IX Rule 13 CPC came to be rejected. 2. For the sake of convenience, parties herein are referred to as they were arrayed before the trial Court. 3. Brief facts relating to the present appeal in a nutshell are as follows: (a) Appellant is 3rd defendant in the Suit. Suit was filed by respondents 1 to 5 herein against 6th respondent herein. 6th respondent father had four sons and three daughters. Three daughters and legal representatives of one son filed the Suit against father seeking partition of suit schedule properties. Pending Suit, sole defendant, father, died on 19.02.2019, therefore, the remaining three sons were impleaded as legal representatives, by order, dated 30.07.2022 in I.A.No.280 of 2019. Appellant herein/3rd defendant in the Suit and respondents 7 and 8/ 4 CGR, J. C.M.A.No.432 of 2025 defendants 2 and 4, were required to contest the Suit. The appellant inspite of engaging counsel could not file written statement, therefore, came to be set ex parte. Other two brothers/defendants 2 and 4 chose to engage counsel and also filed written statement opposing the Suit. As the other two brothers did not participate in the trial by either cross- examining the plaintiffs’ witnesses or offering any evidence from their side, both oral and documentary, the trial Court, ultimately, passed preliminary decree in favour of the plaintiffs, by judgment and decree, dated 05.07.2024. (b) The appellant, thereafter, filed I.A.No.626 of 2024 under Order IX Rule 13 CPC for setting aside the judgment and decree, well within 30 days. In the affidavit filed in support of the application, it has been stated that after demise of 1st defendant/father, the appellant had been residing in Karnataka State for livelihood and when he visited the village on 03.08.2024 for attending function, he came to know that Suit came to be decreed in favour of the plaintiffs, therefore, he had taken steps to file the application for setting aside the ex parte decree. (c) The plaintiffs have opposed the application by filing counter. (d) After considering the reasons set forth in the application and also the counter, the trial Court has dismissed the same, by impugned order. Assailing the same, present appeal is filed. 5 CGR, J. C.M.A.No.432 of 2025 4. Heard Sri P.Sashidar Reddy, learned counsel, representing Sri Chinnala Praveen, learned counsel for the appellant, and Sri P. Sai Avinash, learned counsel, representing Sri T.V.S.Prabhakara Rao, learned counsel for respondents 1 to 5. Though notices were served on respondents 7 and 8, none appears for them. 5. Learned counsel for the appellant contended that the reasons set out in the affidavit filed in support of the I.A., particularly, that the appellant had been staying in the State of Karnataka after demise of his father, ought to have been taken into consideration as valid reason for setting aside the ex parte decree, and that the trial Court has miserably failed to consider that his father has already bequeathed the subject properties through registered Will, therefore, the subject properties were not amenable for partition any more. 6. On the other hand, learned counsel for the respondents 1 to 5/ plaintiffs tried to support the impugned order by contending that the trial Court has rightly rejected the application since it found that the appellant did have knowledge about the Suit proceedings, and the other two brothers were contesting the same, therefore, in the absence of bona fides on the part of appellant, it was justified in rejecting the application. 7. Perused the record and considered the rival submissions of both the learned counsel. 6 CGR, J. C.M.A.No.432 of 2025 8. The Suit was initially filed by respondents 1 to 5 herein against deceased 6th respondent, father of the plaintiffs, and contesting defendants. Since father died during pendency of the Suit, the appellant and respondents 7 and 8 came to be impleaded as legal heirs. It is not in dispute that appellant received summons and participated in the proceedings before he was set ex parte. The record also discloses that he engaged counsel, but, however, failed to file written statement, therefore, he came to be set ex parte in 2022 itself. The other two brothers, respondents 7 and 8, though chose to file written statement, eventually they also did not participate in the trial, therefore, ultimately, the Suit came to be decreed on 05.07.2024. The reasons stated for setting aside the ex parte decree, more particularly, as pleaded in para.2, which reads as under: “2. I submit that the above suit was decreed on 05.07.2024 in favour of the plaintiffs against me and other defendants for non-contesting by me. In the above case, on 26.11.2018 I was set exparte for non-filing of my written statement and subsequently, on 05.07.2024 this Hon’ble Court passed an exparte decree and judgment against me. After death of my father I had been to Karnataka State for livelihood and recently on 03.08.2024 I came to my village to attend my nearest relatives puberty function in turn, I contacted my counsel who informed me that the above Suit was decreed in favour of the plaintiffs and against me, so, I instructed my counsel to prepare set-a-side petition. Hence, I am filing this affidavit with petition praying this Hon’ble Court to set-a-side the decree and judgment, dated 05.07.2024, passed against me and give an opportunity to contest the matter to prove my case and disprove the case of the plaintiffs, otherwise, I will suffer great loss and irreparable damages.” 7 CGR, J. C.M.A.No.432 of 2025 9. Order IX Rule 13 CPC postulates that an ex parte decree passed against defendant can be set aside upon satisfaction of the Court that either summon was not duly served upon the defendant or he was prevented by any sufficient cause from appearing when the Suit was called on for hearing. So, it is prerequisite that one who is seeking to set aside ex parte decree has to sufficiently demonstrate that he has shown sufficient cause for non-appearance on the date of hearing. Further, he should also demonstrate that there was no negligence or inaction on his part. The Hon’ble Apex Court in G.P. Srivastava v. R.K.Raizada1, explaining the purport of Order IX Rule 13 CPC observed as follows: “7. Under Order 9 Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any “sufficient cause” from appearing when the suit was called on for hearing. Unless “sufficient cause” is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The “sufficient cause” for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If “sufficient cause” is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised 1 (2000) 3 SCC 54 8 CGR, J. C.M.A.No.432 of 2025 for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case, the other side can be compensated by adequate costs and the lis decided on merits.” 10. The requirement under Order IX Rule 13 CPC for one to take benefit of the same is that it has to be established that the reasons pleaded should demonstrate lack of knowledge of the proceedings, non- service of summons, besides they were diligent in pursuing the proceedings. 11. In the present case, the appellant had knowledge of the Suit, and even he engaged counsel. As he failed to file written statement, the trial Court has set him ex parte in 2022 itself. He did not bother to find out as to what was happening in the Suit, thereafter, the Suit came to be decreed on 05.07.2024 nearly around two years after being set ex parte. Had the appellant been diligent during the said period, definitely appropriate steps would have been taken for setting aside the same. Having waited till the Suit came to be decreed, later he preferred present application. It would have been different scenario in case proper steps were initiated immediately after appellant was set ex parte, but the period from then till passing of decree is unexplained. Even the reasons mentioned above do not inspire the Court the same to be genuine and bona fide. Except for stating he was living in State of Karnataka, nothing 9 CGR, J. C.M.A.No.432 of 2025 more is mentioned, which clearly is not sufficient to believe the stand pleaded. The findings recorded by the trial Court on aforesaid aspects and the conclusion drawn that the reasons stated do not constitute sufficient cause for the absence, do not suffer from any infirmity, and even this Court, on appreciation of the pleadings and material on record, finds that the appellant has not shown any bona fides in pursuing the matter. 12. Accordingly, the appeal lacks merit and is dismissed. No order as to costs. As a sequel, Interlocutory Applications pending, if any, shall stand closed. _____________________________ JUSTICE CHALLA GUNARANJAN Date:09.09.2025 cs