Decree Is Ex-Parte In Nature If Defendant Could Not Adduce Evidence After Filing Written Statement: Andhra Pradesh High Court

"the impugned decree and judgment are only ex- parte in nature since the evidence of defendant was not adduced in this case and he failed to attend the Court…So there is no demure that in the instant case also the decree and judgment are ex-parte though the trial Court rendered an elaborate judgment. In that view also we think an opportunity should be given to the defendant to contest the suit by setting aside the impugned judgment and decree."

Brief Facts of the Case

An appeal was filed by defendant challenging the decree and judgment in plaintiff's suit for a sum of Rs. 42,96,648/- with interest at 12% p.a. from the date of suit till the date of decree.

The plaintiff's case was that the plaintiff and defendant were relatives and they were businessmen. For his business purpose, the defendant borrowed Rs.25,00,000/- from the plaintiff and executed suit promissory note on 01.09.2008 agreed to repay the amount with interest @24% p.a. However, the defendant did not pay the pronote debt on one or other excuse. Hence the suit.

However, the defendant contended that he never executed any pronote or receive any consideration as alleged in the plaint. The plaintiff used to work under the defendant as an employee and had no capacity to lend such a huge amount, it was alleged. The defendant submitted that he never borrowed any amount and the suit pronote was forged. It was alleged that the plaintiff had filed the suit as he had a grudge against the defendant as the defendant had filed a complaint for against him for embezzlement of funds.

During trial, s written statement was filed on behalf of defendant but but he failed to turn up for cross-examination and so the trial Court removed his evidence from record. Furthermore, the defendant filed an application under Section 45 of Evidence Act to refer the suit pronote to handwriting expert, however, since he did not prosecute the said petition, the same was dismissed for default.

Contentions of Both Sides

The counsel for appellant stated that the defendant could not attend the Court as he seriously fell ill and could not move out to prosecute his case. It was submitted that though the trial Court rendered an elaborate judgment, still it can be treated only as ex-parte judgment in terms of Order 17 Rule 2 of CPC. If the decree and judgment under appeal were held to be 'ex-parte', in nature, this Court could consider the request of the appellant and afford an opportunity to adduce the evidence.

The counsel for respondent argued that the conduct of the defendant would clearly show that his intention was only to procrastinate the decree to be passed eventually against him.

Decision of the Court

The Bench comprising Justice U. Durga Prasad Rao and Justice Tarlada Rajasekhar Rao was of the view that unless the defendant was prevented by some unavoidable circumstances such as ill-health, in normal course he would not desist from attending Court for cross-examination and for adducing further evidence. Furthermore, the Court observed that the Supreme Court decision Prakash Chander Manchanda v. Janki Manchanda, 1986 squarely applied to facts. It that case, it was held that since the defendant's evidence was not adduced, the decree passed was only an ex-parte decree and can be set aside under Order 9 Rule 13 of CPC.

Thus, an opportunity in the present facts should be given to the defendant to contest the suit by setting aside the impugned judgment and decree which was ex parte in nature, Court said.

Accordingly, this appeal was allowed and the judgment and decree was set aside.

Counsel for appellant- Sri G.V.R Choudary and learned Counsel for respondent- Ms S. Pranathi.

Case Title : S SUBRAHMANYAM NAIDU Versus V.RAMACHANDRA NAIDU

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