when the appeal was filed instead of filing set aside exparte decree for not filing written statement, the court must see the reasons on which grounds, the lower court granted decree,instead of dismissing the appeal as the reasons not furnished for non-fling writtenstatement, demands remand for afresh consideration

THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO

 

SECOND APPEAL No.1402 of 2011

 

 

JUDGMENT:

 

 

            Defendant Nos.3 and 4 in O.S.No.53 of 1987 on the file of the Principal District Munsif, Ramachandrapuram are the appellants. The suit was the one filed for declaration that the registered sale deed executed by defendant No.1 in favour of defendant No.2 and the sale deed executed by defendant No.1 in favour of the appellants herein were not valid.  The suit was decreed ex parte as the appellants have not filed any written statement.  As against that, A.S.No.20 of 1997 was preferred in the Court of the Senior Civil Judge, Ramachandrapuram and the lower appellate Court has also dismissed the appeal.  Aggrieved by the said judgment, the present second appeal is filed and the following substantial question of law has been framed:

 

(a)      Whether the lower appellate Court dismissing the appeal on the ground that the defendants have not availed the remedy under Order 9 Rule 13 C.P.C. and also not explained their non-appearance is tenable?

 

 

            Evidently, a reading of the judgment of the lower appellate Court clearly goes to show that after considering the conduct of the appellants for not availing the remedy under Order 9 Rule 13 C.P.C., and as no explanation was given in the grounds of appeal for their non appearance, the appeal was dismissed.  It is to be noted that the remedy under Order 9 Rule 13 C.P.C. and right to prefer an appeal against an ex parte decree are two independent remedies.  The considerations for setting aside an ex parte decree are quite different when the judgment is attacked in appeal on substantial questions. Even if the defendants have not put in their appearance or filed the written statement, still, the lower appellate Court has to consider whether from the material available and taking into consideration the grounds that are raised by the appellants, the decree is sustainable or not.  There cannot be any dispute about the settled proposition of law, but, however, the lower appellate Court erred in not considering the merits of the case independently and dismissing the appeal only on the ground of non-explanation for nonappearance before the trial Court and not availing the remedy under Order 9 Rule 13 C.P.C.

 Therefore, the second appeal is allowed. The judgment of the lower appellate Court is set aside and the matter is remanded to the lower appellate Court for consideration of the appeal on merits with reference to the grounds raised by the appellants as to the tenability of the decree passed by the trial Court. The lower appellate Court shall dispose of the appeal before the end of December, 2012.  The parties to bear their own costs.

Consequently, the miscellaneous petition is also disposed of.

         

_________________________

                                                                 N.R.L.NAGESWARA RAO,J

Dt:13.07.2012

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