HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY CIVIL MISCELLANEOUS PETITION No.644 of 2014 % 14.08.2014 Between:
# Dr.Pradyut Waghray . Petitioner And:
$ Margadarshi Chit Fund Ltd, Warangal Branch and five others.
. Respondents < Gist:
> Head Note:
! Counsel for the Petitioner: Sri K.K.Waghray ^ Counsel for Respondent No.1: Sri P.Durga Prasad ? Cases Referred:
NIL HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY CIVIL MISCELLANEOUS APPEAL No.644 of 2014 Date:14.08.2014 Between:
Dr.Pradyut Waghray, S/o Late R.N.Waghray . Appellant And:
Margadarshi Chit Fund Pvt Ltd., Warangal Branch and five others.
. Respondents Counsel for the Appellant: Sri K.K.Waghray Counsel for Respondent No.1: Sri P.Durga Prasad The Court made the following:
JUDGMENT:
This Civil Miscellaneous Appeal arises out of order, dated 28.04.2014, in I.A.No.239 of 2013 in O.S.No.100 of 2009 on the file of the learned Principal District Judge, Warangal.
The petitioner is defendant No.2 in the above- mentioned suit filed by respondent No.1 for recovery of money. Respondent No.2 is the principal borrower and the appellant along with respondent Nos.3 to 6 is the guarantor. Except the appellant, all other respondents, including the principal borrower, have remained ex parte. The appellant has filed a counter-affidavit and contested the suit.
From the facts recorded by the lower Court in the impugned order, it is evident that the issues were settled on 12.07.2012; that the plaintiff has examined himself as P.W-1 and documents were marked on his side on 29.11.2012; that the suit was posted for cross- examination of P.W-1, on the purported request of the learned counsel for the appellant, on 11.12.2012; that subsequently, the case was adjourned to 20.12.2012 on costs; that on 20.12.2012, neither costs were paid nor was there any representation on behalf of the appellant till 1.10 pm; and that therefore, the appellant was set ex parte, treating cross-examination of P.W-1 as Nil. On 21.12.2012, the judgment was pronounced decreeing the suit ex parte.
The appellant has filed I.A.No.239 of 2013 under Order IX Rule113 of the Code of Civil Procedure, within the period of limitation, for setting aside the said ex parte decree.
In his affidavit, filed in support of the application, the appellant has, inter alia, stated that after filing of the written statement, his counsel has represented that whenever the matter comes for trial, the same will be communicated to him; that he was completely relying upon his counsel.; that recently, he was informed by one of the family members of respondent No.2 (principal borrower) that a decree has been passed as, respondent No.2 has not contested the suit; that on the enquires made by him, he has found that Ms S.Vani, counsel engaged by him, has left the profession and joined some other services; and that due to non-communication from his counsel, the appellant was unable to appear before the lower Court leading to passing of the ex parte decree.
On behalf of respondent No.1, a counter-affidavit was filed, wherein while making a general denial of the plea of the appellant that his counsel has left the profession, it is stated that the same does not constitute sufficient cause. Respondent No.1 has, however, tacitly agreed for setting aside the ex parte decree, if the appellant deposits half of the E.P. amount.
The lower Court rejected the application filed by the appellant.
An analysis of the facts noted above would show that the entire events, commencing from recording of evidence of P.W-1 till the passing of the ex parte decree, have taken place within a span of three weeks’ time.
The main-stay of the appellant’s case is that he was solely and completely relying upon his counsel and that his enquiries made after coming to know about the passing of the ex parte decree had revealed that his counsel has left the profession and joined some other services. The lower Court has subjected the appellant to a highly rigorous standard of proof by undertaking a micro analysis of the facts pleaded by him, ignoring the fact that except the appellant no other defendant has contested the suit by entering appearance and filing a written statement. The lower Court did not give due weight to the fact that the appellant is a busy medical practitioner living in Hyderabad and that it is quite natural for such a busy professional to have relied upon his counsel. The lower Court has also failed to give proper weight to the plea of the appellant that his lawyer has left the profession though that this plea has not been met with specific denial by respondent No.1 inasmuch as while making a general denial of the said averment, it is stated in the counter- affidavit that such a plea does not constitute sufficient cause, which impliedly suggests that respondent No.1 was not seriously denying the fact that the appellant’s counsel has left the profession. After all, the said plea falls in the realm of a very much verifiable fact by the counsel for respondent No.1 and even by the Court below, for that matter.
Be that as it may, the intendment of law is to adjudicate cases on merits as far as possible rather than deciding cases on defaults. In a case involving a litigant whose conduct reveals deliberate avoidance of litigation, the Courts are justified in refusing to set aside the ex parte orders/decrees. However, where the conduct of a party does not reflect high degree of negligence or supine indifference in pursuing his/her cause in the case, the Courts need to show a some what liberal approach in considering the applications for setting aside the ex parte orders/decrees. As noted above, the petitioner was the only defendant who diligently contested the suit by promptly filing written statement. He has also filed the I.A. for setting aside ex parte decree without any delay. His case, therefore, deserves such a liberal approach.
For the above-mentioned reasons, the order of the lower Court is set aside. I.A.No.239 of 2013 is allowed and the suit is restored to file. The lower Court is directed to dispose of the suit within a period of three months from the date of receipt of a copy of this order.
As a sequel to disposal of the Civil Miscellaneous Appeal, interim order, dated 18.07.2014, in CMAMP.No.958 of 2014, is vacated and CMAMP.No.958 of 2014 shall stand disposed of as infructuous.
14th August, 2014 Note:
LR copies to be marked. B/o
DR
JUSTICE C.V.NAGARJUNA
REDDY