Duvvuru Subrahmanyam Reddy v. Irukumati Sreenivasulu

HONOURABLE SRI JUSTICE C.V.RAMULU C.R.P.No.2421 of 2008 ORDER: It appears this Civil Revision Petition was heard and the order was delivered by my learned brother Dr. Justice G.Yethirajulu, on 30-10-2008, however, on the representation made by the learned counsel for the respondent-plaintiff, the matter is listed before me under the caption ‘for being mentioned’.

The dispute was that the suit was not decreed ex parte and it was disposed of on merits on 03-11-2007, whereas the petitioner- defendant filed a petition under Order 9 Rule 13 C.P.C. seeking to set aside the said decree passed in O.S.No.103 of 2006, dated 03-11- 2007 as if it was an ex parte decree.

In fact, the trial Court allowed the suit on merits holding that the counsel for the petitioner-defendant, appeared in the lower Court, sought for adjournment, and thereafter, reported no evidence, as such, the evidence of the petitioner-defendant was closed and arguments were heard. Later, the petitioner-defendant filed I.A.No.81 of 2008 in O.S.No.103 of 2006 seeking to set aside the ex parte decree passed in the main suit. However, the trial Court, in the facts and circumstances of the case, ordered the petition on condition that the petitioner- defendant deposits half of the decreed amount. Aggrieved thereby, the petitioner-defendant filed the present Civil Revision Petition.

This Court, by its order dated 30-10-2008, while holding that imposing such a onerous condition is not permissible under law as per the Judgment rendered S.Guru Murthy and another V. R. Lakshmana Rao[1], allowed the revision petition, and directed the petitioner-defendant to pay the entire costs of the suit only. While so, the learned counsel for the respondent-plaintiff made a mention that the suit was not decreed ex parte, but it was decreed on merits. Therefore, the matter was directed to be posted under the caption ‘for being mentioned’ and the same is listed before this Court.

After going through the judgment passed in O.S.No.103 of 2006, dated 03-11-2007, and the impugned order passed in I.A.No.81 of 2008 in O.S.No.103 of 2006, dated 10-06-2008, I am of the opinion that the trial Court decreed the suit on merits after hearing both the parties. However, the trial Court entertained I.A.No.81 of 2008 in O.S.No.103 of 2006, filed under Order 9 Rule 13 CPC and allowed the same on condition that the petitioner-defendant deposits half of the decreetal amount. This Court, while holding that imposing such a onerous condition is not permissible under law as per the Judgment rendered in S.Guru Murthy’s case (1st supra), allowed the revision petition, and directed the petitioner-defendant to deposit costs of the suit only.

Under those circumstances, while retaining the order passed on 30-10-2008, I am of the opinion that the operative portion of the order needs to be modified to the following effect: “The I.A.No.81 of 2008 in O.S.No.103 of 2006, on the file of the Junior Civil Judge, Kota, stands allowed on condition of the petitioner-defendant depositing entire costs of the suit along with Rs.10,000/- (Rupees ten thousand only), and in default, the order dated 10-06-2008 passed in the said I.A. shall stand dismissed. The petitioner-defendant is further directed to file chief affidavits within a period of four weeks from the date of receipt of a copy of this order, after serving a copy of the same on the counsel for other side.

Subject to the above modification, the Civil Revision Petition is allowed. However, the trial Court is directed to dispose of the main suit within a period of three months from the date of receipt of a copy of this order. No order as to costs. ________________________ 8th September 2009 Note: Issue C.C. in one week. B/o. KVR [1] 2001 (6) ALD 524