IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON'BLE SRI JUSTICE K.C. BHANU C.M.A. No.1041 of 2011 Date: 14.10.2011 Between: M/s. Lachico GO Bananas, rep. By Mr. Abrar Omer ..... Appellant AND M/s. Adorn Garments, rep. By Rahul Baslas, Hyderabad. ....Respondent THE HON'BLE SRI JUSTICE K.C.BHANU C.M.A. No.1041 of 2011 JUDGMENT: This Civil Miscellaneous Appeal is filed under Order XLIII and Rule 1(r) of C.P.C against the order dated 20.07.2011, passed by the XI Additional Chief Judge, (Fast Track Court), City Civil Court at Hyderabad in I.A.No.424 of 2011 in O.S.No.420 of 2008, whereunder and whereby the petition filed by the appellant under Order IX Rule 13 CPC to set aside the exparte decree dated 16.6.2011 passed in O.S.No.420 of 2008 and to restore the suit, was dismissed with costs. 2. Heard the counsel appearing for the respective parties. 3. Respondent/plaintiff has instituted the suit for perpetual injunction restraining the petitioner/defendant from using his trade mark and brand name, to pay Rs.10,00,000/- due with interest and Rs.1,00,000/- towards damages. The petitioner herein has filed written statement denying the claim. Trial has begun and the Suit was coming for evidence of the plaintiff and at that stage, the petitioner was set exparte and consequently an exparte decree was passed. Thereafter, the petitioner filed the present application to set aside the exparte decree. But the trial court has dismissed the same on the ground that no explanation was given by him for his absence. Challenging the same, the present appeal is filed. 4. The learned counsel for the appellant contends that as the counsel was attending in another matter in this court, he could not present before the trial court on 16.6.2011 and consequently the trial court set the petitioner exparte and passed the exparte order and therefore he prays to allow the appeal. 5. On the other hand, the learned counsel for the respondent contended that inspite of several opportunities being given to cross- examine P.W.1, the same has not been availed and on several occasions, costs were imposed and the costs were also not paid and that the defendant has been adopting dilatory tactics, so as to drag on the proceedings and therefore in the absence of sufficient reasons for his absence before the trial court, the exparte decree passed by the trial court cannot be set aside. 6. Under Order IX Rule 13 of C.P.C., if the party is prevented from showing the sufficient cause for his absence in approaching the court, then it can be condoned. The word ‘sufficient cause’ is not defined under Section 5 of the Limitation Act,1963 (for short, the Act). But it must mean a cause which is beyond the control of the party invoking the aid of the said provision. 7. No doubt the word ‘sufficient cause’ is not defined under Section 5 of the Act, but should receive liberal consideration so as to advance substantial justice to the parties but at the same time no negligence or in action or want of bonafides are not imputable to the party to show the bonafides of the appellant and the background facts of the case have to be looked into. A Commissioner was appointed on 4.10.2010 to record his evidence. On the next day, the Commissioner reported to the court that the defendant was not cooperating with him in conducting the cross-examination of P.W.1. Therefore, the Commissioner imposed costs of Rs.500/-. Then the suit was adjourned to 16.11.2010 and there was no representation on behalf of the defendant and therefore, the Commissioner has no option except to return the warrant unexecuted. Then the petitioner/defendant requested the court to give time to cross-examine the P.W.1. Then the Commissioner was allowed to cross-examine the petitioner and completed the execution of the warrant. Two months thereafter, the Commissioner complained to the court that the defendant is not cooperating with him to cross-examine P.W.1. When the matter was called, the defendant remained absent and again costs of Rs.500/- was imposed. Still there was no representation on behalf of the defendant before the trial court. Therefore, from the conduct of the defendant, it can be said that the defendant is not interested to proceed further in the matter in cross-examining P.W.1. Hence, it is not fair on the part of the defendant. Inspite of giving several adjournments by the Commissioner, the defendant was not cooperating to proceed with the matter further. Therefore, in those circumstances, it can be said that there was negligence on the part of the defendant in not conducting the cross-examination of P.W.1. 8. The learned counsel for the appellant relied upon a decision reported in Savithri Amma Seethamma v. Aratha Karthy and others[1] wherein it is held that “We are, therefore, of the view that on the facts and circumstances of the present case, the appellant had sufficient cause for not being present at the hearing of the revision application and the learned single Judge of the High Court ought, in the circumstances, to have allowed the application and re-heard the civil revision petition applying the principle underlying Order XLI, Rule 21 of the code of Civil Procedure.” The above decision has also no application because considering the facts and circumstances of the case therein, it was held that the C.R.P has re-heard by the court applying the principle underlying under Order XLI, Rule 21 of the Code of Civil Procedure. 9. Similarly he also relied on another decision reported in Ramon Services Pvt., Limited V. Subhash Kapoor and others[2] wherein it was held: “Though a matter of regret, yet it is a fact, that the Courts in the country have been contributory to the continuance of the strikes on account of their action of sympathizing with the Bar and failing to discharge their legal obligations obviously under the threat of public frenzy and harassment by the striking advocates. I find myself in agreement with the submission of Sh. M.N.Krishnamani, Senior Advocate that the Courts were sympathizing with the Bar by not agreeing to dismiss the cases for default of appearance of the striking advocates. I have my reservations with the observations of Thomas, J, that the Courts had not been sympathizing with the Bar during the strikes or boycotts. Some Courts might have conducted the cases even during the strike or boycott periods or adjourned due to helplessness for not being in a position to decide the lis in the absence of the counsel but majority of the Courts in the country have been impliedly sympathizers by not rising to the occasion by taking positive stand for the preservation of the high traditions of law and for continued restoration of the confidence of the common man in the institution of judiciary. It is not too late even now for the Courts in the country to rise from the slumber and perform their duties without fear or favour particularly after the judgment of this Court in Mahabir Singh’s case (1998 AIR SCW 3806; AIR 1999 SC 287). In action will surely contribute to the erosion of ethics and values in the legal profession. The defaulting Courts may also be contributory to the contempt of this Court.” The above decision has no application in view of the fact that the costs have not been paid because the Advocates are in strike. 10. In the case on hand, the facts and circumstances are entirely different. No doubt the expression “sufficient cause” occurred in Section 5 of the Limitation Act should normally be construed liberally so as to advance substantial justice, but that it would be a case where no negligence was imputable to the petitioner. The conduct of the defendant cannot be said to be bonafide. There is complete inaction or negligence on the part of the defendant in not proceeding with the matter in cross-examining the witness, even though the witness was examined in chief and further matter was coming up for cross- examination of P.W.1 for more than one year. Therefore, the impugned order does not suffer from any infirmities so as to call for any interference by this Court. The appeal is devoid of any merits and is liable to be dismissed. 11. Accordingly, the Civil Miscellaneous Appeal is dismissed. No order as to costs. _________________ K.C. BHANU, J 14.10.2011, Gk. THE HON'BLE SRI JUSTICE K.C.BHANU C.M.A. No.1041 of 2011 Date:14.10.2011 Gk. [1] AIR 1983 Supreme Court 318 [2] AIR 2001 Supreme Court 207