IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRD DAY OF FEBRUARY TWO THOUSAND AND ELEVEN :PRESENT: THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL NO.4154 of 2004 Between: Sree Annapurana Pharmaceuticals rep. by its Proprietor V. Shiva Kumar Babu and another ..... APPELLANTS AND Glaxo Smith Klime Pharmaceuticals Limited, Governorpet, Vijayawada rep. by K. Nageswara Rao .…. RESPONDENTS JUDGMENT: This appeal is filed to set aside order dated 29-09-2004 passed by the II Additional Senior Civil Judge, Vijayawada, in I.A.No.1658 of 2004 in O.S.No.60 of 2003 filed seeking to set aside ex parte decree passed against the appellants on 22-03-2004 in the suit. 2. The order dated 29-09-2004 passed in I.A.No.1658 of 2004 in O.S.No.60 of 2003 reads as hereunder: “Heard, the petition is allowed subject to condition of deposit of suit costs of Rs.25,776/- in through court for plaintiff to receive and subject to furnishing security by properties or bank guarantee for Rs.Ten lakhs by 4-11- 2004 failing which the petition stand be dismissed.” 3. Learned counsel appearing for the appellants submits that the respondent filed the suit for recovery of Rs.10,56,570/- for breach of contract whereas on 21-01-2004 the appellants were set ex parte for non-filing of written statement and on 22-03-2004 the ex parte decree was passed and subsequently, the appellants filed I.A.No.1658 of 2004 in O.S.No.60 of 2003 to set aside the ex parte decree pleading that for certain reasons they could not file the written statement in time. A further submission is made therein that without considering the reasons mentioned in the said I.A., the lower Court passed the impugned order. In support of his contention he has relied upon decision reported in BUDATIRAJENDRA PRASAD v. KOLAMUDI RAMACHANDRA RAO[1]. 4. Now the point for consideration in this appeal is as to how far the impugned order is tenable. 5. The lower Court should have examined the reasons given by the appellants in the affidavit filed in support of I.A.No.1658 of 2004 in O.S.No.60 of 2003 and passed speaking orders. Further, directing the appellants to deposit costs of Rs.25,776/- and also directing them to furnish security of properties or bank guarantee for Rs.10,000,00/- appear to be harsh. 6. I n BUDATIRAJENDRA PRASAD v. KOLAMUDI RAMACHANDRA RAO it is observed as follows: “The grounds on which an ex parte decree can be set aside the three in number: (I) The summons were not duly served on the party; (II) The party suffering the ex parte decree was prevented by any sufficient cause from appearing when the suit was called on for hearing; (III) ex parte decree will be set aside against such a person upon such terms as to costs, payment in the Court or otherwise as it thinks fit and shall appoint a day for proceeding with the suit. No other condition is contemplated or can be imposed. The term to be imposed has been with reference to only costs and not to the suit amount.” 7. This decision is quite applicable here. In view of the above, the lower Court’s order is not tenable being non speaking order and harsh. 8. Therefore, the appeal is allowed setting aside the order dated 29-09-2004 passed by the lower Court in I.A.No.1658 of 2004 in O.S.No.60 of 2003 and the matter is remanded to the lower Court for fresh consideration. There shall be no order as to costs. ________________________________ G. KRISHNA MOHAN REDDY, J February 03, 2011 Pn THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.4154 OF 2004 February 03, 2011 [1] (1997) 6 ALD 755