K.N.V. Sri Rama Rao vs Government of Andhra Pradesh and others

This appeal was filed against the order dated 18-7-1991 in IA No.581 of 1988 in AS No.21 of 1987 on the file of the Subordinate Judge, Razole, which was filed to set aside the ex parte order dated 26-4-1988 and allow the respondent to defend the matter.

The appellant has mentioned in the affidavit filed in support of the above IA, that the First Appeal No.21 of 87 was filed against the order of the learned Principal District Munsif, Razole in OS No.222 of 1973, which was filed for declaration of title over the property and the suit was decreed in favour of the appellant herein and the Government, which is the defendant in the suit filed appeal. When the appeal was posted for the appearance of the respondent therein on 26-1-1988 the appellant failed to attend and he was set ex parte and posted for hearing on 11-7-1988 and on 13-7-1988 the appeal was heard and disposed of on merits. Thereafter IA 581 of 1988 was filed under Order 41 Rule 21 of CPC to set aside the ex parte order dated 26-4-1988. After hearing the Counsel for the petitioner and the respondent, the Court dismissed the 1A and held that the decreetal order passed on 13-7-1988 that it is a well merited judgment. Therefore, in view of the above, the petitioner can prefer an appeal against the judgment dated 13-7-1988 and not to file the petition in IA No.581 of 1988 to set aside the ex parte order dated 26-4-1988.

The appellant Counsel while arguing the matter brought to my notice the relevant provisions. Order 41 Rule 21 reads as under:

Re-hearing on application of respondent against whom ex parte decree made: Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the appellate Court to re-hear the appeal; and if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.

As seen from the above provision, Order 41 Rule 21 contemplates two contingencies; the request of the respondent to re-hear the appeal on the ground of non-service of notice; therefore, he could not attend the Court on that particular day on which the matter was posted for appearance; secondly, the respondent was prevented by sufficient cause from attending the Court when the matter was called on for hearing.

In this case, the learned Counsel for the appellant submitted that the appellant was seriously ill from 20th April,1988 to 3-10-1988 and he was laid up in the bed during that period and he could not move out from the house. Later after recovery from the illness, when he enquired about his case, he was informed that he was set ex parte by the Court and an ex parte decree was passed against him. Therefore, he approached the Court with a medical certificate to substantiate his ground that he was bed-ridden during the period from 20-4-1988 to 3-10-1988 and therefore, prevented by sufficient cause of ill-ness from appearing when the appeal was called on for hearing. He further submitted that the Court was given power to re-hear when an application is made to re-hear the appeal on such terms as to costs or otherwise, as it thinks fit to impose upon him. Therefore the appellate Court should have imposed such terms as to costs and set aside the ex parte order and posted the case for rehearing and should have allowed the respondent-appellant to argue his case. Therefore, the order passed by the lower appellate Court rejecting his application, is contrary to Rule 21 of Order 41. In support of his contention he relied on a judgment" of this Court in Hyder Khan v. Babu Laxminarayana Gupta, 1964 (1) An.W.R. 494.

The facts of the case are that when the appeal was part-heard and adjourned and the next date of hearing the appeal was fixed as 1st April, 1960, on that day, both the parties were absent, and the Court then declared that the appeal is closed and posted the case for judgment on 6th April, 1960. As the judgment was not ready on 6th April, 1960, the next date fixed was 12th April, 1960 on which date, the appeal was allowed and the trial Court''s decree was reversed. The plaintiff-respondent, thereafter, moved the Court under Order 41, Rule 21 CPC, to re-hear the appeal as he and his lawyer, for the reasons shown in the affidavit, could not enter appearance on the date fixed i.e., 1st April, 1960. When the application to re-hear the appeal was dismissed by the lower appellate Court, appeal was preferred before the High Court. The learned Judge held that the procedure adopted by the lower appellate Court is contrary to the provisions of Order 41, Rule 21 CPC. Even though the appellant was not present on the date fixed for hearing, and no adverse order could be passed against the respondent as he was not called upon to argue and before the appellant himself had concluded his argument, the Court decided the appeal against him. The order, therefore, was held to be totally ultra vires. The Court further observed that since it may be deemed to be an ex parte order as against the plaintiff-appellant therein, his application for rehearing the appeal ought to have been allowed. The learned Chief Judge has rejected his application without any sufficient grounds. Therefore, the learned Judge allowed the appeal and set aside the order of the learned Additional Chief Judge, City Civil Court, Hyderabad and directed the appeal to be restored to its original number to be re-heard and disposed of in accordance with law.

Following the dicta laid down by this Court in the above judgment, I hold that the lower appellate Court should have entertained the application filed by the appellant-petitioner in IA No.581 of 1988 to set aside the ex parte order and to allow him to argue the matter by imposing such terms as to costs or otherwise, as it think fit. Therefore, the order passed by the learned Appellate Judge is contrary to the Order 41, Rule 21 of the Code of Civil Procedure, and therefore, the same is set aside and the lower appellate Court is directed to restore the said IA to its original number and dispose of the same in accordance with law as expeditiously as possible.

In the result, the appeal is allowed, but in the circumstances of the case, without costs.

This petition having been set down for being mentioned on 30-7-1999 and upon perusing to the order of the High Court dated 27-7-1999 and made herein and upon perusing the said order and upon hearing the arguments of the above Counsels.

The Court made the following Order :

Appeal is allowed. In the circumstances, the appellant is directed to pay a sum of Rs.1,500-00 towards costs to the Andhra Pradesh Chief Justice Defence Fund, High Court of Andhra Pradesh, Hyderabad, within a period of four weeks.