IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY NINTH DAY OF JANUARY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL MISCELLANEOUS APPEAL No.2465 of 1998 Between: Devanaboyina Chalapathi Rao and others. ... APPELLANTS AND Nali Sitaramachandra Rao and others. ...RESPONDENTS Counsel for the Appellants : Mr. P.V. PARABRAHMA SASTRY Counsel for the Respondents: Mr. K. GOPALA KRISHNA MURTHY The Court made the following: JUDGMENT: This appeal is directed against the order of the trial Court in I.A.No.298 of 1990 in refusing to set aside the ex parte decree. 2. This matter was heard earlier and in view of the joint request of both the counsel that they would advise the parties to settle the matter amicably; it was adjourned from time to time on several occasions. Today, the learned counsel for the appellants states that she has no information regarding the settlement talks. Since the settlement had not attained in the matter, this CMA is being decided on merits. 3. The suit for specific performance was filed by the respondent being O.S.No.66 of 1984 before the Subordinate Judge, Machilipatnam, against the appellants herein. The said suit is based upon an agreement of sale dated 09.03.1981 alleged to have been executed by the appellants in favour of the respondent/plaintiff. It was alleged in the plaint that the respondent had paid Rs.15,000/- out of total consideration of Rs.30,000/- towards part payment and was delivered possession of the suit land on the date of agreement. In the said suit, the appellants/defendants filed a written statement wherein the execution of the suit agreement was not disputed but it is alleged that the said agreement was only nominal and was executed at the request of the respondent for the purpose of income tax. The trial in the suit was commenced and the respondent/plaintiff had closed his evidence and the suit was coming up for the evidence of appellants/defendants. The suit was posted to 02.02.1990, which fact, admittedly was informed to the appellants by their counsel. However, it is evident from record that neither the appellants/defendants appeared before the Court on that day nor their counsel was instructed otherwise and therefore, on the said date of hearing, the counsel reported no instructions. The appellants were set ex parte and the suit was decreed ex parte. I.A.No.298 of 1990 was, thereafter, filed seeking to set aside the said ex parte decree. The said application was dismissed by the trial Court under the impugned order, against which the present appeal was filed. 4. Learned counsel for the appellants contended that the decree ought to have been set aside by the trial Court inasmuch as the affidavit of the second appellant, who is looking after the suit on behalf of the other appellants, had clearly stated that the second appellant went to Visakhapatnam on 27.01.1990 and had fallen sick and could not contact the counsel nor could come back to Machilipatnam on the date of hearing i.e. 02.02.1990 when the suit was posted for their evidence. 5. The aforesaid averment in the application to set aside the ex parte decree was seriously opposed by the respondent by filing a detailed counter pointing out that their application was earlier dismissed in default on 07.06.1990 for not taking notices to the respondent, though the I.A.No.298 of 1990 was filed on 24.02.1990. He also submitted that the suit agreement having been not disputed by the appellants, a vague and evasive plea was raised by them that the suit agreement is only nominal. It was also contended that the appellants are litigants and have several matters in the Courts, which are pending and even this matter they intended to protract on some ground or the other. It was also alleged that several opportunities were given to them but they have not availed any and their counsel also reported no instructions and they have willingly suffered an ex parte decree with a malafide intention to protract the litigation. The present application and the reasons given there are totally false, as no medical certificate also is filed along with the application. The respondent, therefore, prayed for the dismissal of the said application. 6. The trial Court, under the impugned order, has considered the said rival submissions and found that though all the appellants are residents of Machilipatnam, there is no explanation forthcoming with respect to appellants 1 and 3 nor the alleged illness as pleaded by the second appellant is supported by any evidence including medical certificate. The trial Court, therefore, was of the view that the said self-serving statement, which was highly contested by the respondent, cannot be accepted. The trial Court, therefore, came to the conclusion that the present application is only to protract the proceedings and dismissed the same. 7. In this appeal, I have heard the learned counsel for the appellants, who has submitted that an opportunity ought to have been given to the appellants, as they have promptly filed the application to set aside the ex parte decree within time and the reasons given in the affidavit of the second appellant ought to have been accepted. It is also contended that even the respondent has not filed any execution petition and for that reason though this appeal was filed in June 1992, no application for stay was moved and the present appeal has remained pending on the file of this Court all these years. 8. Per contra, the learned counsel for the respondent has filed copies of material papers showing the application filed by the respondent/plaintiff in I.A.No.158 of 1995 for appointment of the Advocate Commissioner to measure the plaint schedule property in terms of the decree with the assistance of the Mandal Surveyor and with reference to the Field Measurement Book. It is stated that in the affidavit that in terms of the decree of the Court below, balance sale consideration has already been deposited by the respondent and since the appellants have not taken any steps in spite of dismissal of their I.A.No.298 of 1990, the respondent was forced to approach the Court for appointment of Advocate Commissioner for the aforesaid purpose. He also produced copies of the docket of the Court, which shows that the Court had appointed one Sri M. Sai Venkata Rao, as Advocate Commissioner for the aforesaid purpose and the matter was adjourned on several occasions awaiting the report of the learned Advocate Commissioner. He also pointed out that subsequently another Advocate Commissioner was appointed. While the matter remained at that stage, the first appellant died and steps were taken for impleading his LR’s, which consumed some time. Learned counsel states that the appellants are intentionally delaying the proceedings on one ground or the other and have not allowed the matter to come up to the stage of EP. Learned counsel also submits that the suit agreement having not been disputed by the respondent, the appellants have wantonly suffered an ex parte decree and trying to get the same set aside by this proceedings is clearly not bonafide and as such, does not warrant interference. 9. I have considered the aforesaid submissions. It is, no doubt, true that the Court would lean in favour of granting opportunities to the parties to get a lis adjudicated on merits but, at the same time, the facts of the present case, to my mind, clearly show that the appellants are not bonafide. As rightly pointed out by the trial Court as well as by the learned counsel for the respondent, there is no explanation forthcoming as to why first and the third appellants could not attend the Court on 02.02.1990 when the suit was posted for their evidence, even assuming that the second appellant had gone over to Visakhapatnam and allegedly fell ill over there. Further, the alleged illness of the second appellant is not supported by any evidence whatsoever. The fact that the counsel reported no instructions has not been contraverted and the counter affidavit of the second respondent states that even after several opportunities given to the appellants, they chose to remain ex parte and willingly suffered an ex parte decree appears to be true. The manner in which the proceedings have been prosecuted by the appellants does not inspire confidence that they are bonafides and it is evident that the attempts are being made to delay and protract the suit on one ground or the other. The suit is of 1984 and if the decree is set aside now, the plaintiffs as well as the defendants will again have to lead evidence and after lapse of several decades it would be almost impossible for the parties to collect and lead evidence. Relegating the parties back to the trial Court from the stage of defendants’ evidence would, therefore, cause immense prejudice to the plaintiffs and on the other hand, the defendants would stand to gain by wiping off all the delay so far caused and would stand to gain an unfair advantage. Even otherwise, I am not satisfied that the sufficient caused exists in favour of the appellants. 10. The Division Bench of this Court in V. SUTHATKEERTHI v. V. GOVARDHAN[1] has considered a similar question relating to discretionary jurisdiction conferred upon the Court in setting aside the ex parte decree and was of the view that litigants, who are not diligent, trying to protract, the discretion does not deserve to be exercised in their favour. Further, the appellant/defendant failed to establish and prove that there was sufficient cause for their non-appearance on the date on which the decree was passed. This Court, therefore, dismissed the appeal by confirming the order of the trial Court in refusing to set aside the ex parte decree, on being satisfied that the same was justified on the facts of the case. 11. The facts and circumstances of the present case are closer to the facts and circumstances of the judgment of the aforesaid Division Bench. Even in the present case, I am not satisfied nor the trial Court was satisfied of the bonafides of the appellants in seeking to set aside the ex parte decree. I.A.No.298 of 1990 filed by the appellants was, therefore, rightly dismissed by the trial Court and I am not persuaded to take a different view. The civil miscellaneous appeal has no merits and is accordingly dismissed. However, there shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J January 29, 2010 DSK [1] 2010 (1) UPLJ 38