Section 5 of the Limitation Act, for condonation of delay of 680 days -The appellant filed an application under Order 9 Rule 13 C.P.C., to set aside the ex parte decree, in the year 2006, soon after it came to know about the ex parte judgment. I.A.No.921 of 2007, filed under Section 5 of the Limitation Act, for condonation of delay of 680 days, was dismissed by the trial Court, and the same was affirmed by this Court in C.R.P.No.4589 of 2008. Hence, this appeal against the ex parte decree.= Time and again the Hon’ble Supreme Court held that, even where the defendant in a suit remains ex parte, the trial Court is not absolved of its obligation, to satisfy itself, about the merits or otherwise of the case of a plaintiff, and for that purpose necessary discussion must be undertaken. An additional factor in this case is that the suit was filed against a local body. Each and every item of a claim ought to have been discussed, even if no written-statement was filed. It has already been mentioned that the inability on the part of the appellant to hand over the premises was, on account of an order of temporary injunction granted by a Civil Court. These aspects need to be taken into account even at this stage, and the appellant deserves to be given an opportunity. Hence, the appeal is allowed, and the ex parte decree is set aside. The trial Court is directed to dispose of the suit, on merits, after giving an opportunity to the appellant, to file written-statement, by recording evidence.


THE HON’BLE MR JUSTICE L. NARASIMHA REDDY
A.S. No.611 of  2009
JUDGMENT:
  
The deceased-1st respondent filed O.S.No.291 of 1996 in the Court of Principal Senior Civil Judge, Tirupati, against the appellant, for recovery of Rs.3,18,592/-.  It was pleaded that he was awarded a contract for running a vegetable market by the appellant, and though the stipulated conditions were fulfilled, including the deposit of E.M.D., the market was not handed over to him.  The appellant opposed the suit by filing written-statement.  The trial Court decreed the suit ex parte, through judgment dated 17-07-2002.  It is stated that the Executive Officer of the Gram Panchayat, who was impleaded as defendant No.2 in the suit, was looking after the litigation, and on account of his negligence, the written-statement was not filed in time.  It is stated that the then Executive Officer committed several irregularities and disciplinary proceedings were initiated against him.
The appellant filed an application under Order 9 Rule 13 C.P.C., to set aside the ex parte decree, in the year 2006, soon after it came to know about the ex parte judgment.  I.A.No.921 of 2007, filed under Section 5 of the Limitation Act, for condonation of delay of 680 days, was dismissed by the trial Court, and the same was affirmed by this Court in C.R.P.No.4589 of 2008.  Hence, this appeal against the ex parte decree.
The 1st respondent died.  Thereafter, his legal representatives i.e. respondents 2 to 5, initiated steps for the decree.
It is not in dispute that the 1st respondent emerged as the highest bidder in an auction conducted by the appellant.  It is stated that the possession of the market was not handed over to him, on account of the fact that the contractor of the previous year filed O.S.No.209 of 1996, in the Court of Principal District Munsif, Tirupati, and obtained an order of temporary injunction.  The Executive Officer of the Gram Panchayat, who figured as defendant in the suit was looking after the appellant herein.
For one reason or the other, he did not file written-statement, much less contested the suit.  No issues were framed, and the suit was decreed ex parte, through the following judgment:

“Suit for recovery of a sum of Rs.3,18,592/- being the deposit amount, interest and other charges due by the defendants for the non-delivery of vegetable market premises to the plaintiff on 1-4-96 as per the contract.
2.  I.A.582/02 is allowed.  Since defendant counsel reported no instructions.  Defendant called absent.  No representation. Defendant set ex parte.  P.W.1 examined in chief.  Perused the evidence.  Suit claim proved.  Suit is decreed with costs, with subsequent interest at 6% per annum from the date of decree till the date of realization”.

The only evidence before the trial Court was, the deposition of PW-1.  It was not supported by any independent evidence.  
Time and again the Hon’ble Supreme Court held that, even where the defendant in a suit remains ex parte, the trial Court is not absolved of its obligation, to satisfy itself, about the merits or otherwise of the case of a plaintiff, and for that purpose necessary discussion must be undertaken. 
An additional factor in this case is that the suit was filed against a local body.  Each and every item of a claim ought to have been discussed, even if no written-statement was filed.  It has already been mentioned that the inability on the part of the appellant to hand over the premises was, on account of an order of temporary injunction granted by a Civil Court.  These aspects need to be taken into account even at this stage, and the appellant deserves to be given an opportunity. 
Hence, the appeal is allowed, and the ex parte decree is set aside.  The trial Court is directed to dispose of the suit, on merits, after giving an opportunity to the appellant, to file written-statement, by recording evidence.
There shall be no order as to costs.

_______________________
L. NARASIMHA REDDY, J.
Dt.17-10-2009.

KO


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