If the defendant cannot adduce evidence after filing a written statement due to factors like ill health the decree passed is ex-parte in nature: Andhra Pradesh High Court

In case of S Subrahmanyam Naidu Vs. V.Ramachandra Naidu (A.S.No.783 of 2019) decided through the learned bench led by Justice U.Durga Prasad Rao and Justice Tarlada Rajasekhar Rao where the AP HC set aside a judgment and degree with ex-parte as the defendant was ill and could not adduce evidence in trial.

Facts of the case: A case was filed by the plaintiff stating that he and the defendant were relatives and the defendant borrowed 25 lakhs from the plaintiff and executed a promissory note agreeing to repay the amount with interest @24% p.a., but every time the date of paying came the defendant had excuses and delayed to pay the amount due to which the suit was filed.

Later the defendant made an appeal challenging the decree and judgment in the plaintiff suit of Rs.2,96,648/- with interest at 12% p.a. from the date of suit till the date of the decree.

The defendant alleged that he never executed any pronote or as matter of fact never received any consideration as alleged by the plaintiff and according to his plaintiff cannot lend such a huge amount as he himself worked for the defendant and was his employee. Therefore, accordingly, he never borrowed any amount and the suit pronote was forged. The defendant suspected that as he filed a complaint against the plaintiff for embezzlement of funds the plaintiff due to grudges against the defendant as filed such suit.

Judgment: Even after a written statement was filed on behalf of the defendant he failed to show up for the cross-examination during the trial and so the evidence from his side was removed from the record. Also, the court dismissed for default, an application that the defendant filed under Section 45 of the Evidence Act to refer the suit pronote to a handwriting expert, since he did not prosecute the said petition.

The counsel for the appellant contended that the defendant fell ill and could not attend the proceedings. It was submitted that though the trial Court rendered an elaborate judgment, still it can be treated only as an 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 the respondent argued that the defendant showed clear intention to procrastinate the decree to be passed against the plaintiff.

The court was of the view that unless the defendant was prevented by some unavoidable circumstances such as ill-health, in the normal course he would not desist from attending Court for cross-examination and for adducing further evidence and so the court said 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 and therefore the defendant shall be given an opportunity to contest the suit setting aside the impugned judgment and decree which was ex parte in nature and so the appeal was allowed.

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