Whether the condition imposed relating to the deposit of 1/4th of decretal amount and suit costs by the learned I Additional Civil Judge, Kakinada has to be confirmed, or to be disturbed or to be modified, in the facts and circumstances of the case while setting aside the exparte decree ?

HON'BLE SRI JUSTICE B.N. RAO NALLA      

CMA No.972 OF 2010  

04.12.2012    

Sundarapati Balu s/o. Sundara Pande

Kamadi Ganga Raju s/o. Sathi Raju

Counsel for the Appellant: Mr. Josyula Bhaskara Rao

Counsel for Respondent: Ms. N.P.Anjana Devi

<GIST:

>HEAD NOTE:  

Referred Cases:
2009 (5) ALD 110.

JUDGMENT:  

This appeal is preferred by the defendant in O.S. No.282 of 2007 on the file of
I Additional Senior Civil Judge, Kakinada, assailing the condition imposed by
the trial Court, while allowing the application which is filed under Order 9
Rule 13 and Section 151 of Code of Civil Procedure, 1908 to set-aside the ex
parte decree dated 26.09.2007, by order dated 20th February, 2009 in I.A. No.684
of 2008.

2.      The appellant herein is the defendant and the respondent herein is the
plaintiff in the suit O.S. No.282 of 2007.  The suit is filed for recovery of
amount.  The parties hereinafter referred to as they arrayed in the
interlocutory application.

3.      The petitioner filed the present I.A. No.684 of 2008 to set-aside the ex
parte decree in the suit.  The case of the petitioner is that when suit is
posted for written statement, he could not contact his counsel as he was unable
to obtain leave from office.  Apart from that, one of his close relatives fell
sick and he had to accompany him.  Subsequently, when he met his counsel, he
informed him that the suit was decreed ex parte on 26.09.2007.  That the
petitioner has a good case.  Therefore, he sought to set-aside the ex parte
decree.  The case of the respondent is that though the petitioner made his
appearance in the suit on 20.06.2007 through his counsel, he failed to file
written statement in spite of sufficient opportunity being given to him.   When
the respondent filed E.P. and the matter is posted for counter, the petitioner
has come up with this interlocutory application.  The trial Court after enquiry
allowed the I.A. subject to condition of petitioner depositing 1/4th of the
decretal amount of Rs.4,28,066/- and suit costs of Rs.14,540/- on or before
19.03.2009, failing which the I.A. would stand dismissed.  Aggrieved by the
imposition of condition, the petitioner approached this Court by filing the
present civil miscellaneous appeal.

4.      Heard the learned counsel on either side and perused the material made
available on record.

5.      On 20.08.2010, in CMAMP No.1735 of 2010, this Court granted interim stay
on condition of petitioner depositing a sum of Rs.50,000/- within a period of
four weeks.  It is stated that the conditional order has been complied with.

6.      CMAMP No.2156 of 2010 is filed seeking to vacate the interim order dated
20.08.2010 made in CMAMP No.1735 of 2010 in CMA No.972 of 2010.  Since the  
conditional order of this Court dated 20.08.2010 has been complied with and the
respondent was permitted to withdraw the same without furnishing any security,
no relief was granted in the vacate stay petition, and as such, the interim stay
was made absolute.

7.      Counsel for the petitioner (appellant herein) had taken this Court through
the order, which is being challenged in the present Civil Miscellaneous Appeal
and would maintain that in the facts and circumstances of the case, allowing the
I.A. on condition of deposit of 1/4th decretal amount and the suit costs on or
before 19.03.2009, that too without recording any specific reasons, cannot be
sustained as the condition is onerous.  The counsel also has taken this Court
through the respective stands taken in the pleadings by the parties and would
maintain that inasmuch as the conditional order made by this Court has been
complied by depositing Rs.50,000/-, the petitioner be permitted to contest the
matter.   The learned counsel placed the reliance on the decision in Shaik Ahmed
Mohammad v. Damodardas Haridas and Sons, Sec'bad1.    

8.      Per contra, the counsel for the respondent has taken this Court through
paragraph 5 of the order under challenge and would maintain that inasmuch as the
learned Judge referred the conduct of the petitioner, it can be taken that
sufficient reasons have been recorded while imposing condition of deposit of
1/4th of decretal amount and suit costs, and as such, the same cannot be said to
be onerous.

9.      In the light of the submissions made by the counsel on record, the
following point arises for consideration in this Civil Miscellaneous Appeal.

10.     Whether the condition imposed relating to the deposit of 1/4th of decretal
amount and suit costs by the learned I Additional Civil Judge, Kakinada has to
be confirmed, or to be disturbed or to be modified, in the facts and
circumstances of the case? 

11.     The petitioner is expected to be diligent and conscious while prosecuting
the litigation.  In the light of the stand taken in the counter filed by the
respondent, the learned Judge taking the conduct of the petitioner into
consideration, came to the conclusion that it is just and proper to impose the
condition of deposit of 1/4th of decretal amount and suit costs on or before
19.03.2009.

12.     It is no doubt true that no hard and fast rule can be laid down in such
cases, and depending upon the facts and circumstances of a particular given case
while allowing an application to set-aside the ex parte decree certain
conditions would be imposed.  
Whether such conditions imposed are onerous or 
justifiable or unjustifiable may have to be decided in the facts and
circumstances of a particular case.  It is difficult to lay down the guidelines
exhaustively, in this regard. At best, certain circumstances may be specified,
which, at the best, can be said to be illustrative.  Here is a case where this
Court already has granted interim stay on condition of deposit of Rs.50,000/-
and the said amount has been deposited and the respondent is permitted to
withdraw the same without furnishing any security.  As far as the imposition of
condition of 1/4th  of decretal amount and suit costs on or before 19.03.2009 is
concerned, this Court is satisfied that taking into consideration the respective
pleadings of the parties, this portion of the condition being onerous, the same
is liable to be set-aside.  Accordingly, the condition of imposition of deposit
of 1/4th of decrial amount and suit costs into the Court on or before 19.03.2009
is hereby set aside and it is needless to say that the condition of deposit of
Rs.50,000/- has already been complied with and the same is hereby recorded.  The
point is accordingly answered.

13.     In the result, the Civil Miscellaneous Appeal is allowed modifying the
order under challenge to the extent that the condition imposed relating to the
deposit of 1/4th of the decretal amount and suit costs on or before 19.03.2009
is hereby set aside and inasmuch as the conditional order made by this Court has
been complied with and the respondent is permitted to withdraw the same without
furnishing any security.  Since the application for setting aside the ex parte
decree dated 26.09.2007 is allowed, the parties are at liberty to participate in
the further proceedings and inasmuch the learned counsel on either side pleaded
urgency, let the learned Judge dispose of the suit itself as expeditiously as
possible .  No order as to costs.

_________________      
B.N. RAO NALLA, J      
Date: 04.12.2012