HONOURABLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No:5782 OF 2010 Dated: 24.12.2010 Between: Puvvada Suneetha. ..Petitioner And Battula Srinivasa Rao. .. Respondent This Court made the following HONOURABLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No:5782 OF 2010 ORDER: This is a revision filed under Article 227 of the Constitution of India, complaining that the IV Additional Senior Civil Judge (FTC), Vijayawada, is not numbering and passing orders in G.L.No.486 of 2010 in O.S.No.1291 of 2007. The petitioner herein is the defendant and the respondent is the plaintiff in the suit. Originally, the plaintiff filed the suit for recovery of amount from the defendant on the foot of a promissory note. On appreciation of oral and documentary evidence, the Court below decreed the suit on 8.10.2010. The defendant filed the above application under Order 9 Rule 13 CPC, seeking to set aside the exparte decree dated 8.10.2010. The office of the Court below took an objection that since the suit was disposed of on contest the petition is not maintainable. The defendant re-presented the same. But the Court below having not satisfied with the explanation, returned the application. Hence, the present revision is filed. Heard the learned Counsel and perused the material available on record. Learned Counsel for the petitioner-defendant submitted that due to boycott, the Counsel for the defendant did not argue the matter and the Court below without hearing the Counsel for the petitioner- defendant decreed the suit and therefore, decree passed in the suit can be construed as an exparte decree and hence, the application filed by the petitioner-defendant is maintainable. The explanation inserted by Act 4 of 1976, w.e.f.1.2.1977 under Order 17 Rule 2 of C.P.C., reads as follows: “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.” In State of A.P., the following explanation is inserted on 27.4.1961: “The mere presence in Court of a party or his counsel not duly instructed shall not be considered to be an appearance of the party within the meaning of this rule.” But the said explanation has not been noticed by the trial Court. Order 17 Rule 2 of CPC mandates to dispose of the suit in one of the modes directed in that behalf by Order IX. Admittedly, in the case on hand, the entire evidence had been completed and the suit is posted for arguments. According to the Counsel for the petitioner-defendant, no arguments were urged on behalf of the defendant. In such circumstances, the trial Court may proceed to dispose of the case as contemplated under Order 17 Rule 2 of CPC in one of the modes directed in that behalf by Order IX but such order is called as an exparte order only. In view of the same, the trial Court is not justified in returning the application filed by the petitioner-defendant. Accordingly, the CRP is allowed. The trial Court is directed to receive the application impugned herein and to dispose of the same on merits. No order as to costs. ________________________ Justice A. Gopal Reddy Date: 24th December, 2010 Nn. HONOURABLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No:5782 OF 2010 24.12.2010