IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE THIRTEENTH (13TH) DAY OF APRIL, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.5655 of 2008 Between: Gunja Laxmidevi … Petitioner And: Yagantipalli Rama Murthy Achari … Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.5655 of 2008 ORDER: This revision petition is directed against the order dated 22.08.2008 in IA No.178 of 2008 in OS No.229 of 2003 on the file of the Additional Senior Civil Judge (Fast Track Court), Nandyal, wherein, the said application filed under Order IX Rule 13 CPC for setting aside the exparte decree dated 02.04.2008, was allowed. 2. Heard both sides. Perused the record. 3. The petitioner herein filed suit for permanent injunction. The respondent/defendant filed written statement, contesting the suit. After settlement of issues, the trial was taken up. The plaintiff side evidence was closed on 31.01.2008. Thereafter, suit under went several adjournments for the defendant’s evidence. The plaintiff examined four witnesses on her behalf and they were duly cross-examined by the defendant’s counsel. On 19.03.2008 in spite of imposing costs, the defendant has not appeared before the Court. The court treated that the defendant had no evidence on his behalf. The trial Court has deemed that the defendant has no evidence and after hearing the counsel for the plaintiff, the judgment was pronounced, decreeing the suit on 02.04.2008. Thereafter, the respondent/defendant filed IA No.178 of 2008 for setting aside the decree under Order IX Rule 13 CPC. The petitioner opposed the same on the ground that it was not an exparte decree, but it was a judgment pronounced on merits. The trial Court by impugned order 22.08.2008 allowed the said application on payment of costs of Rs.500/-. Aggrieved by the same, the present revision is filed by the plaintiff. 4. The main contention of the learned counsel for the plaintiff is that the judgment having been passed on merits under Order XVII Rule 3 CPC, the petition under Order IX Rule 13 CPC is not maintainable and the remedy if any is only by way of appeal. 5. Order XVII Rule 2 CPC states that, where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX CPC. Explanation to Rule 2 CPC says where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day, to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present. The explanation is not attracted to the present case, inasmuch as substantial portion of evidence of the respondent has not yet been recorded by the date of passing of the impugned judgment. 6. Order XVII Rule 3 CPC states that where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, the court may notwithstanding such default, if the parties are present, proceed to decide the suit forthwith or if the parties are, or any of them is, absent, proceed under Rule 2. Sub clause (b) of Rule 3, is attracted to the present case, in as much as the defendant who was granted time to produce his evidence failed to do so and he was also absent on the date of hearing. Under Rule 2 of Order XVII CPC when the defendant has not appeared on the date of hearing, the Court may proceed to dispose of the suit in one of the modes contemplated under Order IX. Order IX Rule 6 CPC states that where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then if it is proved that the summons was duly served, the court may make an order that the suit be heard exparte. Rule 7 enables the defendant to appear and assign good cause for his previous non-appearance and the court may direct that he be heard as if he had appeared on the day fixed for his appearance. Rule 13 of Order IX contemplates that in any case in which a decree is passed exparte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside and the court on being satisfied that he was prevented by any sufficient cause for appearing when the suit was called on for hearing, the court shall make an order setting aside the decree. 7. In the present case, Order IX Rule 13 CPC is attracted, since the decree was passed against the respondent/defendant. The decree shall be deemed to be an exparte decree in view of sub-clause (b) of Rule 3 of Order XVII CPC. The petition filed under Order IX Rule 13 CPC for setting aside the decree, is therefore maintainable in the facts and circumstances of the case. 8. Regarding the latches on the part of the defendant, the trial Court has observed that the plaintiff’s side evidence was closed on 31.01.2008 and DW.1 filed chief affidavit on 08.02.2008 and in spite of granting several adjournments, the defendant did not get ready and ultimately, it was adjourned on payment of costs to 19.03.2008 and on that day also, the defendant did not turn up and therefore, it was deemed that he had no evidence. The trial Court, however, considers it just and proper to afford an opportunity to the defendant to adduce evidence so that the matter can be disposed of on merits, instead of exparte. Accordingly, the trial Court allowed the said petition on payment of costs of Rs.500/- subject to the condition that the defendant shall file all the documents and produce all witnesses before the Court on 18.09.2008, failing which, the petition shall stand dismissed. 9. The discretion exercised by the trial court does not call for interference, inasmuch as the impugned order was passed imposing certain conditions and also default clause. As the dispute relates to immoveable property, and it is stated that several suits were pending between the parties, it is only just and proper that the matter is disposed of on merits after giving an opportunity to the defendant to produce evidence. The defendant, shall not, however, try to protract the matter under the guise of letting in evidence and in the event of defendant not ready with his evidence within the time fixed by the trial Court, it is open to the trial Court to pass appropriate orders in accordance with law. 10. In the result, the civil revision petition is dismissed. No order as to costs. The interim stay granted earlier, stands vacated. __________________ G.V.SEETHAPATHY, J Date: 13.04.2011 bss