VELUGUBANTI VEERANNA Vs. BULUSU KAMA SASTRULU
HIGH COURT OF ANDHRA PRADESH
Velugubanti Veeranna and Ors.
Bulusu Kama Sastrulu
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Umamaheswaram, J. -
(1.) THIS is an appeal against, the Order of the Subordinate Judge, Kakinada, refusing to set aside an ex parte decree under Order 9, Rule 13, Code of Civil Procedure. The application was filed by Defendants 7 to 12 alleging that they did not appear in court on account of certain representations made by the Plaintiff and the other Defendants. The Subordinate Judge did not address his mind as to whether the allegations made in the affidavit were true or not. He took the view that the Defendants 7 to 12 might proceed against the Plaintiff or the other Defendants for damages for any such representations made by them.
(2.) ORDER 9, Rule 13, Civil Procedure Code provides that if it is proved that the party was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, or otherwise as it thinks fit. The learned Subordinate Judge took the view that the terms of Section 151, Code of Civil Procedure., did not apply and relied on the Pull Bench decision in Neelaveni v. Narayana Reddi., 37 Mad LJ 599:, ILR 43 Mad 94: (AIR 1920 Mad 640) (A). In my view, the Subordinate Judge ought to have taken evidence as to whether the allegations made in the affidavit were true, namely whether any representations were made by the Plaintiff, and the Defendants, as alleged by them and whether they did not appear in court on account of such representations, and whether those allegations constitute sufficient cause within the meaning of Order 9, Rule 13, Civil Procedure Code.
I therefore, set aside the Order of the Subordinate Judge and remand the application to the Court below for taking evidence and determining whether there was sufficient cause for non -appearance within the meaning of Order 9, Rule 13, Code of Civil Procedure In this view, it is unnecessary to consider whether the provisions of Section 151, Code of Civil Procedure might be invoked or not and whether the Pull Bench decision of the Madras High Court should be followed by the Andhra High Court or not. The appeal is allowed and remanded to the trial court. The costs will abide the result.;
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