Thottempudi Ammaji vs Convention of Baptist Churches of Northern Cirars, Visakhapatnam and others

In this revision petition, the order of the senior Civil Judge, Srikakulam dated 1-3-1999 passed in IA No,78 of 1999 in OS No.3 of 1994 is challenged.

The facts relating to this revision petition will be stated briefly as under:

The petitioner herein is the 14th defendant in the suit before the trial Court. The first respondent herein (first plaintiff) and others filed the suit against the petitioner and 53 others for declaration and for other reliefs relating to the disputes among the members of Convention of Baptist Churches of Northern Circars. After the defendants appeared and when the suit was coming up for filing written statements, the petitioner herein who is the 14th defendant in the suit was set ex parte as she failed to attend the Court on 19-12-1995 and as written statement was not filed on that day. After the other defendants had filed the written statements, the Court framed 16 issues and posted the matter for trial. When the suit as posted for trial, the plaintiff''s advocated filed a memo on 21-9-1998 to the effect that the plaintiffs had no oral evidence to adduce. In pursuance of the said memo, the Court has closed the evidence of the plaintiff and posted the matter for the evidence of the contesting defendants. Subsequently, a memo was filed on behalf of the defendants also to the effect that they have no evidence to adduce. After recording these memos and after the closure of the evidence of the defendants, when the suit was coming up for hearing arguments on 2-11-1998, the plaintiffs got the matter re-opened and examined two witnesses and got Exs. A1 to A17 marked. Subsequently, the contesting defendants also got the matter re-opened on their side, examined a witness as DW1 and got Exs.Bl to B16 marked. After closure of the evidence, the suit was again posted for arguments. It is at this stage, the said IA was filed by the petitioner herein.

The petitioner herein in her affidavit stated that after the death of her husband, who is the 13th defendant in the suit, on 31-9-1994 she did not make any correspondence with her advocate regarding the matter due to which she was set ex parte on 19-12-1995 and under the circumstances she could not attend the Court on that day ;. e,, 19-12-1995.

The learned senior Civil Judge in his order has noted that the husband of the petitioner herein, who was the 13th defendant in the suit, died on 11-9-1994 and the petitioner herself was set ex parte on 19-12-1995. The only reason mentioned by the petitioner for her inability to appear on 19-12-1995 as stated in her affidavit, a copy of which has been filed, is as follows:

"3. I submit that the 13th defendant in the above suit is my husband and thus, myself and 13th defendant have engaged an Advocate on our behalf and subsequently the 13th defendant expired on 11-9-1994. Later on, I did no make, any correspondence with my Counsel on record and, therefore, I was set ex parte on 19-12-1995. Recently, 1 came to know about this fact and thus I am filing this petition."

No reason is discernible from this averment for the petitioner''s non-appearance in the Court on 19-12-1995 muchless a sufficient cause for non-appearance. The only reason as stated by her is that after the death of her husband she did not make any correspondence with her Counsel on record. She has not furnished any reason why and under what circumstances she could not make any correspondence with her advocate. It is not a case where an illiterate party to the proceedings states that she was not aware of the proceedings and that her husband was looking after everything relating to the proceedings, and as such after the death of her husband she could not know what had happened to the proceedings. In this case, the petitioner''s specific statement is that herself and her husband i.e., 13th defendant, have engaged an advocate on their behalf. This shows that she was aware of the proceedings which have been pending. The affidavit far from assigning good cause for non-appearance discloses absolute negligence on her part.

Under the circumstances, the dismissal of the petition for setting aside the order setting her ex parte by the learned senior Civil Judge cannot be considered as illegal or irregular in any way. It cannot be said that he had no jurisdiction to pass the order in question.

It is true that in matters falling under Order IX Rule 7 of the CPC, the Courts must take liberal view of the matter on consideration that the issues involved in a suit must be allowed to be decided on merits rather than on technical grounds;'' But, in this case, the petitioner has approached the Court for setting aside the orders setting her ex parte passed on 19-12-1995 after more than three years on 12-2-1999. No special reasons have been stated in the affidavit filed for condoning the inaction on the part of the petitioner for more than three years. There does not appear any reason to interfere with the order of the learned senior Civil Judge.

However, before parting with this matter, it is necessary to note what has come to the notice of this Court during the hearing of this petition. The present proceedings would show that defendant No.13 died, according to the petitioner herein, on 11-9-1994. But, strangely, cause-title of the order under revision shows the said defendant No.13 as a party. The fact of the death of the said defendant does not seem to have been recorded nor is there any indication to show that any steps have been taken to bring the legal representatives of the said defendant No. 13 on record. There is nothing to show from the cause-title given in the order under revision that any defendant already a party to the proceedings has been recorded as the sole legal representative of the deceased defendant No.I3. It is difficult to comprehend how the proceedings could have continued against a defendant who has been dead for long time. If the plaintiffs failed to take steps to bring on record the legal representatives of defendant No.13, then appropriate consequential orders ought to have been passed by the trial Court. It is hoped that these matters will be looked into by the learned senior Civil Judge and the records will be set straight in accordance with the relevant provision of law pertaining to bringing of legal representatives on record or abatement of the suit in respect of the deceased defendant whose legal representatives have not been brought on record. It may be mentioned that the present petitioner, defendant No. 14, who is said to be the wife of the deceased; defendant No.13, could have bene shown as the sole or one of the legal representatives of defendant No.13, if proper steps had been taken. It would appear that so far no such steps have been taken and in the meanwhile the present petitioner, defendant-No.14, was also set ex parts on 19-12-1995. The question that may arise is, if the legal representatives of defendant No.!3 are ordered to be brought on record, whether fresh notice would have to be issued to defendant No.14 inasmuch as she was set ex parte already and what would be the nature of her participation in the proceedings as legal representatives of defendant No. 13, if and when she is so brought on record? I hope all these questions would be sorted out before the Court proceeds to pass final judgment in the suit. These observations are made only to ensure that the Court below finally dispose of the matter by taking into consideration these questions. However, it is made clear that no finding or view is intended to be expressed on the legal questions involved in the suit and the learned senior Civil Judge will decide the questions on his own in accordance with the relevant provisions.

With the above observations, the revision petition is dismissed. No costs.