Order 9, Rule 13 read with Section 151 of C.P.C.= It is not as though the defendants were given ample chances to file written statements and the case was posted to 10-02-2010 for their written statement finally or peremptorily.- would appear to be the first occasion on which the defendants did not file written statement.- We are afraid that when the defendants were already set ex parte on 10-02-2010 and an ex parte decree was also passed on the same day, the question of defendants representing their case on 24-02-2010 or on 06-10-2010 or the defendants filing written statements would not arise. In this view of the matter, we consider it appropriate to set aside the impugned order and also set aside the ex parte decree passed against the appellants-defendants. The trial Court shall give an opportunity to the defendants to file written statement and dispose of the case on merits.

HON’BLE  SRI JUSTICE V. ESWARAIAH

&

HON’BLE SRI JUSTICE K.G. SHANKAR

CIVIL MISCELLANEOUS APPEAL No.51 OF 2013

Dated: 6^th February, 2013

Between:

K.Rajanikanth Reddy and six others 

… Petitioners

And

S.Hanumanth Reddy and one another

… Respondents

JUDGMENT:  (per Hon’ble Sri Justice K.G.Shankar )

The appellants are the defendants.  The first respondent-plaintiff filed suit for perpetual injunction.  Defendant Nos.2 to 8 did not file their written statement on 10-02-2010 the day on which the matter was posted.  They were promptly set ex parte by the learned trial Judge, and the ex parte decree was also passed on the same day i.e., 10-02-2010.   Aggrieved by the same, defendant Nos.2 to 8 preferred an application under Order 9, Rule 13 read with Section 151 of C.P.C. before the trial Court, holding that the defendants did not act in a bonafide manner and the said application was dismissed by the trial Court.  Hence, this appeal.

2.      The record discloses that the defendants failed to file written statements on 10-02-2010.  It is not as though the defendants were given ample chances to file written statements and the case was posted to 10-02-2010 for their written statement finally or peremptorily.  Nevertheless, the trial Court deemed it appropriate to set the defendants ex parte although that would appear to be the first occasion on which the defendants did not file written statement.

3.      The Learned trial Judge goes further to point out that the arguments in the case were heard on 24-02-2010 and that the case was re-opened for further hearing on 06-10-2010, and that on neither of the occasions, the defendants representing their grievance sought for setting aside the ex parte order.  

We are afraid that when the defendants were already set ex parte on 10-02-2010 and an ex parte decree was also passed on the same day, the question of defendants representing their case on 24-02-2010 or on 06-10-2010 or the defendants filing written statements would not arise.    In this view of the matter, we consider it appropriate to set aside the impugned order and also set aside the ex parte decree passed against the appellants-defendants.  The trial Court shall give an opportunity to the defendants to file written statement and dispose of the case on merits. 

Accordingly, this appeal is allowed.  No order as to costs.

                                                         ______________________

                                                                          V. ESWARAIAH, J   

                     ______________________

                                                                          K.G.SHANKAR ,J

Dated: 6-2-2013

Nrg / Mva