SURU SYAMALAMBA Vs. KINTHALI POLISETTI

JUDGEMENT

(1.) On, 21-7-1978 when this appeal was posted for hearing, Sri Ranganatham, the learned counsel far the appellant, was not present. There was no representation even. The respondents counsel was present Hence the appeal was disposed of by me ex parte, having heard the counsel far the respondents. The appeal was dismissed.

(2.) Sri Ranganatham flied an application stating that he was not able to attend the Court. He, therefore, wanted that the ex parte judgment and decree passed by the High Court on 21-7-78 should be set aside, Sri Ranganatham explains that he was prevented from attending the Court by back-ache which persisted for a week. I accept the explanation offered by Sri Ranganatham that he was prevented by sufficient cause from attending the Court. I, therefore, feel it necessary to set aside the judgment rendered by me on 21-7-1978 and it is accordingly set aside The appeal. is, therefore, restored to file.

(3.) Then the counsel on both sides addressed arguments. Sri Ranganatham contends that the lower Court is not justified in passing the ex parte decree. He also contends that the lower Court has applied the provisions of O. 17, R. 2 C.P.C, arbitrarily. According to him, the advocate appearing for the 2nd defendant in the suit O.S. 58/76 had been to Hyderabad but returned in Godavari Express and got down at Waltair Railway Station, the terminus station, and from there, he bearded the link Express Bus immediately and proceeded to Sri.kakulam and after taking bath and food, the advocate proceeded to the Court and came to know from his junior Sri D. K. Patnaik that the Court did not pass over till 2-30 p.m though he made a request to do so. He, therefore. contends that it Is not a case of failure on the part of the 2nd defendants counsel to attend the Court, but it is a case of passing over for few hours, so as to enable the 2nd defendants counsel to proceed with the trial Further, the delay in attending the Court is due to the reasons beyond the control of the advocate and hence O. l7, R. 2 C.P.C. does not stand in the way of the Court to pass over the matter till 2-30 P.M. for proceeding with the trial.