HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR Dated 13-4-2010 C.R.P. No.226 of 2010 Between: Gaddam Butchi Ramulu. …Petitioner. And: Mandapalli Ravi Kumar and another. …Respondents. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.226 of 2010 ORDER: This Revision is directed against the order of the learned Senior Civil Judge, Khammam in I.A.No.744 of 2009 in O.S.No.247 of 2003 dated 30-11-2009 to the extent of imposing condition and depositing of Rs.80,000/- which is 1/3rd of the principal suit claim as a condition for setting aside the exparte decree. 2. In the impugned order, it is stated that the suit was coming up for cross-examination of P.W.1 and the petitioner who is defendant in the suit did not evince any interest though opportunities were granted to him on payment of costs for more than one occasion and ultimately, counsel representing the petition failed to appear on 30-6-2009 whereupon the 2nd defendant was set exparte and suit was decreed exparte. The present application in I.A.No.744 of 2009 is thereafter filed by the defendant No.2 seeking to set aside the exparte decree by stating that he could not appear on account of his ill health and counsel was engaged in another Court and could not represent before the Court below. The trial Court on consideration in the said I.A.No.744 of 2009 was of the view that an opportunity deserves to be given to the defendant No.2 and being satisfied with the sufficient cause has set aside the exparte decree. The Court below, however, imposed condition that the defendant No.2 should deposit 1/3rd of the principal sum which works out to Rs.80,000/- within one month failing which the application to set aside the exparte decree would stand dismissed. The Court below also imposed condition that P.W.1 shall be cross-examined by the 2nd defendant without taking any further adjournment. 3. Heard the learned counsel for the petitioner. Though the notice was served on the 1st respondent-plaintiff, nobody appeared on 9-4-2010. The matter was therefore, adjourned to 12-4-2010. On that day also, nobody appeared though the learned counsel for the petitioner was heard. Office was further directed to print the name of the 1st respondent in the cause list and if there is any appearance by the counsel, the same may be notified in the cause list. Accordingly, office has listed the matter today and apparently, no appearance is entered on behalf of the 1st respondent-Plaintiff, but his name is printed in the cause list. 4. As nobody appears for the 1st respondent-plaintiff, it is clearly apparent that the 1st respondent does not choose to contest the C.R.P. 5. The issue involved is with regard to the onerous condition while setting aside the exparte decree. This is well settled by the Division Bench of this Court in a decision reported in RAJESWARA INDUSTRIES vs. STATE BANK OF HYDERABAD ([1]). This is also followed by a learned Single Judge of this Court in a decision reported in S.GURU MURTHY vs. R.LAKSHMANA RAO ([2]). As per the ratio of the above decisions, the Court should be well justified in imposing costs as it deems appropriate. However, the condition directing the part of the decretal amount of the suit claim to be deposited is held to be onerous and not authorized by the provisions of Order IX Rule 13 C.P.C. 6. In view of the settled legal position, the condition imposed under the impugned order, is liable to be set aside and is accordingly set aside. 7. However, the petitioner shall pay costs of Rs.500/- (Rupees five hundred only) to the 1st respondent-plaintiff within two weeks from today. If the 1st respondent does not accept the costs, the petitioner shall deposit the said costs to the credit of the suit before the Court below. The petitioner shall also co-operate with the Court below and shall cross-examine P.W.1 on the next date of hearing which shall be fixed by the Court below. 8. Accordingly, this Civil Revision Petition is allowed. No costs. _____________________________________ JUSTICE VILAS V. AFZULPURKAR Dated 13-4-2010. Note: Communicate a copy of this order to the Court below within a period of one week. BO Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.226 of 2010 Dated 13-4-2010 [1] 1991 ALT-2-365 [2] 2001 ALT-6-655