THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No. 946 OF 2009 Date: 09-04-2010 Between Kakaraparthy Sriramamuthy …..Appellant And Adapa Narasa Reddy …..Respondents THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No. 946 OF 2009 ORDER: The appellant – judgment debtor filed the second appeal challenging the correctness of the judgment passed by the learned V Additional District Judge (Fast Track Court), Rajahmundry dated 28- 08-2009 dismissing A.S No. 64 of 2004 filed by him confirming the ex parte judgment of the learned I Additional Junior Civil Judge, Rajahmundry dated 07-03-2003 in O.S No. 373 of 2000 filed for recovery of a sum of Rs.68,700/-. When the appeal was taken up for admission, the following substantial question of law ws framed: “Merely because the defendant – appellant herein set ex parte, the necessity of proof of plaintiff’s case can be dispensed with one line order?” On service of notice, the respondent – plaintiff has put up his appearance through an advocate, but his advocate is not cooperating with the Court. When the matter was taken up for hearing on 01-04- 2010, there was no representation on behalf of the respondent, but to give one more chance, the matter is posted to today under the caption “for orders”. Even today, there is no representation on his behalf. Heard the learned counsel for the appellant and gone through the evidence. The main grievance of the appellant - defendant is that on his being set ex parte, the trial Court without assigning any reason decreed the suit and when the said decree has been challenged before the lower appellate Court, the lower appellate Court without adverting to the contention as to whether an ex parte decree can be passed without assigning any reason and without there being proof of the plaintiff’s case went into the fact that the application filed by the appellant – defendant under Order 9 Rule 7 CPC was dismissed for non-complying with the conditional order, which reveals that the lower Court granted ample opportunity to the appellant to cross examine the witness, but he did not choose to avail the opportunity given by cross examining the witness. The evidence of PW 1 coupled with the suit promissory note reveals that the appellant borrowed an amount of Rs.45,000/- from the respondent – plaintiff and agreed to repay the same with interest at 24% per annum on demand either to the plaintiff or to his order. The defendant who admitted the said fact in the written statement took a defence that he partly paid the amount but the plaintiff did not return the promissory note. As such, there is necessity to examine the scribe or attestor as there is no dispute with regard to execution of promissory note and passing of consideration under Ex.A- 1 and the terms thereon. As the appellant failed to adduce evidence, the trial Court rightly decreed the suit. Thus holding, the lower appellant Court dismissed the appeal. It is now fairly well settled that in ex parte proceedings on failure of filing written statement or leading evidence by the defendant necessity of proof by the plaintiff cannot be dispensed with (see Ramesh Chand Ardawatiya v. Anil Panjwani[1]). Since the trial Court has not assigned any reason about the fact of the plaintiff establishing his case as per the impugned judgment, the judgment and decree passed by the trial Court in O.S No. 373 of 2000 is set aside and the matter is remitted to the trial Court to consider the case afresh and pass appropriate orders by assigning reasons. It is also open for the appellant to take such other steps to cross-examine the plaintiff including by filing an appropriate application. The second appeal is accordingly allowed. A. GOPAL REDDY, J 09-04-2010 ks [1] AIR 2003 SC 2508