Court Can't Proceed Ex-Parte Against Defendant For Not Filing Written Statement After Lawyer Appears And Files Vakalatnama: AP High Court

The Andhra Pradesh High Court has held that once a defendant has entered appearance through an advocate by filing a vakalat, the trial court cannot set the defendant ex parte merely because the written statement was not filed within the stipulated time. Instead, the proper course is to forfeit the defendant's right to file the written statement and proceed with the suit in accordance with the Code of Civil Procedure (CPC).Disposing of a civil revision petition, Justice Subba Reddy Satti declined to interfere with the trial court's order setting aside the ex parte order against the first defendant. However, the Court directed the defendant to pay costs of Rs. 25,000 to the revision petitioner for the delay. The Court observed:"A conjoint reading of all the provisions noted supra, discloses that once a defendant appears after service of summons and a vakalat is filed, unless the vakalat is terminated by the Court, the advocate who filed the vakalat shall be deemed to be continued and represent the party. If a written statement is not filed within the time stipulated after appearance, the proper course would be to forfeit the right to file a written statement and proceed further with the suit.In the case at hand, an advocate appeared for defendant No.1 and in fact, sought extension of time to file a written statement; however, no written statement was filed. In such an event, the docket order of the trial court to set defendant No.1 exparte is contrary to the scheme discussed supra. This court is reminded of a Latin maxim, ‗Actus Curiae Neminem Gravabit,' an act of the Court shall prejudice no one.In the case at hand, the course adopted by the trial Court in setting defendant No.1 ex parte, despite the vakalat filed, on the ground of non filing of written statement, without forfeiting the right to file a written statement, is impermissible."The dispute arose from a suit for declaration, specific performance of an agreement of sale and, in the alternative, refund of the advance amount with compensation. The first defendant was set ex parte in August 2016 after failing to file a written statement despite obtaining an extension of time. Several years later, he moved an application under Order IX Rule 7 CPC seeking to set aside the ex parte order, stating that he had been suffering from liver disease and had undergone liver transplant surgery, which prevented his appearance. The trial court allowed the application, prompting the second plaintiff to challenge the order before the High Court.Before the High Court, the revision petitioner contended that the trial court had assigned no reasons while allowing the application and that the written statement could not have been accepted after the expiry of the prescribed period. Examining the CPC scheme, the High Court held that Order IX Rule 6 permits a defendant to be set ex parte only upon non-appearance after service of summons. Once a vakalat is filed, it continues unless terminated under Order III Rule 4(2), and failure to file a written statement must be dealt with under Order VIII Rule 10, not by setting the defendant ex parte. Hence, the trial court's 2016 order was contrary to the CPC.At the same time, the High Court observed that procedural laws are handmaidens of justice and that the suit, instituted in 2016, had not progressed to trial. Instead of remanding the matter, which would further delay the proceedings, the Court sustained the order setting aside the ex parte order but held that the defendant should compensate the plaintiff for the delay by paying costs.Accordingly, the High Court disposed of the revision petition without interfering with the trial court's order. However, it directed the first defendant to pay costs of Rs. 25,000 to the second plaintiff within four weeks, failing which the amount was to be deposited with the District Legal Services Authority.Case Title: Vyasyaraju Maheswara Rao v. Boyina Govinda Rajulu & Ors.Case No.: Civil Revision Petition No. 19 of 2023Counsel for the Petitioner: Smt. T.V. Sri DeviCounsel for the Respondents: Sri Ch. Praveen Kumar, representing Sri Vinod Kumar Tarlada.Click Here To Read/Download Order

Court Can't Proceed Ex-Parte Against Defendant For Not Filing Written Statement After Lawyer Appears And Files Vakalatnama: AP High Court

Ritika Verma

The proper course is to forfeit the defendant's right to file written statement and proceed with the suit, Court said.

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Ritika Verma

Court Can't Proceed Ex-Parte Against Defendant For Not Filing Written Statement After Lawyer Appears And Files Vakalatnama: AP High Court

Ritika Verma

The proper course is to forfeit the defendant's right to file written statement and proceed with the suit, Court said.

This is a premium content Available exclusively to Our subscribers

INR 1099+GST

Tags

Ritika Verma

This is a premium content
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