Andhra Pradesh High Court – Amravati
A.S.Traders, vs M.G.R. Rice Industries, on 31 July, 2025
1
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM
APPEAL SUIT NO.223 OF 2025
ORDER:
(per Hon‟ble Sri Justice Ravi Nath Tilhari)
On 03.07.2025, we passed the following order:
” I.A.No.1 of 2025 has been filed by the appellants/defendant Nos.1
& 2 for condonation of delay of 950 days in filing the appeal.
2. The suit was filed by the plaintiff/respondent for recovery of money.
3. The appeal has been filed against the decree dated 11.04.2022
passed in O.S.No.11 of 2018 on the file of V Additional District &
Sessions Judge, East Godavari District, Rajamahendravaram.
4. In the affidavit filed in support of I.A.No.1 of 2025 seeking
condonation of delay, the cause as stated in para-6 is as follows:
“6. It is submitted that the petitioners/defendants, who are the proprietors,
and the respondent/plaintiff, have instituted the alleged suit based solely on
a copy of the ledger to recover the amount, including excessive interest.
However, no notices were served to the petitioners/defendants, nor
were summons issued to them. The petitioners/defendants only
became aware of the attachment of their property in the executing
court pursuant to E.P.No.145 of 2022, on the file of the Hon‟ble Principal
Sub Judge. Subsequently, the petitioners/defendants filed an objection and
now seek to challenge the decree, which was passed as an ex parte order.”
5. Learned counsel for the appellants/applicants had argued that
summons were not served and consequently, the appellants had no
knowledge of the suit proceedings and the ex-parte decree. The
appellants came to know about the decree from the proceedings in
E.P.No.145 of 2022 filed in the state of Kerala.
6. Considering inter-alia the aforesaid submission, on 26.06.2025, this
Court passed the following interim order:
“This appeal was by the defendants in O.S.No.11 of 2018 filed by the
plaintiff/respondent in the Court of V Additional District and Sessions
Judge, East Godavari, Rajamahendravaram. The said suit for recovery of
amount with interest has been decreed on 11.04.2022.
2. Learned counsel for the appellants submits that the appellants had no
knowledge about the said case and the notice. Consequently, they could
not appear to contest the matter by filing the written statement. In para-6
of the affidavit filed in support of I.A.No.1 of 2025, which is for
condonation of delay of 950 days in filing the appeal, it is inter alia
submitted that „however, no notices were served to the
petitioners/defendants, nor were summons issued to them. The
petitioners/defendants only became aware of the attachment of their
2property in the executing court pursuant to E.P.No.145 of 2022, on the file
of the Hon‟ble Principal Sub Judge‟.
3. Learned counsel for the appellants further submits that the dispute being
commercial dispute of the specified value, this suit could not have been
filed in the Court of the Additional District and Sessions Judge, East
Godavari, Rajamahendravaram, but was cognizable by the Special Court
under the Commercial Courts Act.
4. However, a perusal of the judgment under challenge in para-4 shows
that it mentions that „despite receipt of summons, the defendants No.1
and 2 did not choose to enter their appearance in the suit and were set ex
parte.‟
5. Though the appeal has been filed beyond limitation, and I.A.No.1 of
2025 is filed for condonation of delay to which learned counsel for
the respondent prays time to file objection, but in view of the further
submission of the appellants counsel that in the Execution Court the
date fixed is 04.07.2025, we call for the report from the Court
concerned with respect to the service of notice on the defendants 1
and 2 in the suit i.e. the appellants herein supported with copy of the
relevant records/orders on service passed in the suit .
6. List the matter on 03.07.2025.
7. By that date, the objections if any to I.A.No.1 of 2025 may also be filed
by Sri S.Siva Bhami Reddy, learned counsel appearing for the
plaintiff/respondent. 8. Let a copy of this order be sent to the Court
concerned without delay to submit report before the date fixed.”
7. Pursuant to the said order, the V Additional District Judge, East
Godavari, Rajamahendravaram submitted a report dated 30.06.2025
submitting inter-alia that the summons of the defendant Nos.1 & 2 in
OS.No.11 of 2018, issued through registered post, were returned
unserved as “addressee left”. The summons issued through Court by
that date were not returned. So the suit was posted to 26.09.2018. On
26.09.2018 vakalat was filed by Sri N.Anoopu Kumar and Smt.K.Andal,
advocates on behalf of the defendant Nos.1 & 2. The case was posted to
11.12.2018 for filing of written statements of defendant Nos.1 & 2.
Statutory time was granted for filing written statement from 26.09.2018 to
16.04.2019, but the defendant Nos.1 & 2 failed to file their written
statement within a statutory period. The defendants were called absent
and there was no representation on 16.04.2019. Hence, defendant Nos.1
& 2 were set ex-parte on 16.04.2019. The suit was posted to 24.06.2019
for plaintiff evidence.
8. From the aforesaid report of the V Additional District Judge,
Rajamahendravaram, it is evident that the defendant Nos.1 & 2
appeared in the suit. They filed vakalat and time was granted to file
written statement but they did not file any written statement. They did not
appear on 16.04.2019 and were set exparte.
9. Consequently, the ground as stated for condonation of delay that the
summons were not served, is not correct and is contrary to the record.
3
10. With respect to the jurisdiction as per the Report, the entire record
was submitted to the Special Judge, Commercial Court, Visakhapatnam.
From the said Court the file was again returned to V Additional District
and Sessions Court, Rajamahendravaram on 01.02.2020, as the offer
and acceptance between the parties to the suit in respect of supply of
goods was in the nature of agreement and did not have any legal basis
to attract the jurisdiction of the Commercial Court.
11. We do not find force in the submission advanced. The cause shown
is not sufficient to condone the delay. We reject I.A.No.1 of 2025.
12. Consequently, appeal is also dismissed as barred by limitation.
13. For filing such affidavit containing para-6, as noted above, and not
disclosing correct facts but suppressing the material facts and setting up
a case of no service of summons, whereas the defendants/appellants
had engaged the counsel in the suit; were granted time to file written
statement and were set exparte, is an act and conduct which cannot be
ignored by us.
14. We issue notice to the appellants/applicants to show cause as to
why the proceedings be not drawn against them for suppression of
material facts and for trying to mislead the Court.
15. At this stage, learned counsel for the appellants/applicants submits
that in para-4 of the judgment the learned Trial Court recorded that
“despite receipt of summons, the defendant Nos.1 & 2 did not choose to
enter their appearance in the suit and were set exparte”. So, para-6 was
stated in the affidavit.
16. Prima -facie we are not satisfied. Para-4 of the judgment clearly
mentions „despite service of summons‟ which shows service of
summons. Further, “the defendant did not choose to enter their
appearance in suit and they were set exparte” reveals about the
defendants‟ non-appearance on the date they were set exparte.
17. Let the affidavit be also filed by the learned counsel showing the
efforts made to ascertain correct facts, from the record of the learned
Trial Court before filing the appeal and application with affidavit
containing incorrect facts, in case of any misunderstanding of facts.
18. Post on 31.07.2025 for the aforesaid purposes.
19. The Registrar (Judicial) to take necessary steps.”
2. Vide order dated 31.07.2025 aforesaid, I.A.No.1 of 2025,
which was for condonation of delay of 950 days in filing of the
appeal, was rejected and the appeal was also dismissed as
barred by limitation and notice was also issued to the
4
appellants/applicants to show cause as to why the proceedings
be not drawn against them for suppression of material facts and
for trying to mislead the Court.
3. Pursuant to the order dated 03.07.2025, the 2nd appellant has
filed the affidavit. Para-8 of the affidavit reads as under:
“8. It is respectfully submit that, I came to know that one of my
well-wisher was engaged the above said advocates as my
counsel before the trial court and the same was not in my
knowledge, therefore I given instructions to my counsel that no
notice/summons were served and not engaged any advocate.
That the above said facts are not known to me and it is only came
to know after the order passed by this Hon‟ble Court
dt.03.07.2025. That there is no suppression of facts by my
counsel and my counsel prepared based on my instructions and
instructions of our lower court advocates namely Mr.Anand and
Hari Priya. I am hereby tendering my unconditional apology
before this Hon‟ble Court and this Hon‟ble Court may accept my
apology and close all further proceedings. Hence this affidavit.”
4. We are not satisfied with the explanation offered in para-8 of
the affidavit of the 2nd appellant. The same is an afterthought. As
per the said para also, it is evident that the counsel was engaged
and vakalat was filed in the suit though it is submitted that the
same was not in the knowledge of the appellants. The counsel
could not be engaged without the appellants signing the vakalat.
We cannot accept the explanation that the counsel was engaged
without the knowledge of the appellants.
5
5. There is clear suppression of fact and misstatement with
respect to the summon and no knowledge of the suit
proceedings. The appellants have abused the process of this
Court.
6. In Oswal Fats & Oils Ltd. v. Additional Commissioner
(Administration), Bareilly Division, Bareilly1, the Hon’ble Apex
Court held that a person who approaches the Court for grant of
relief, equitable or otherwise, is under a solemn obligation to
candidly disclose all the material/important facts which have
bearing on the adjudication of the issues raised in the case. In
other words, he owes a duty to the Court to bring out all the facts
and refrain from concealing/suppressing any material fact within
his knowledge or which he could have known by exercising
diligence expected of a person of ordinary prudence. If he is
found guilty of concealment of material facts or making an
attempt to pollute the pure stream of justice, the Court not only
has the right but a duty to deny relief to such person.
7. In Kishore Samrite v. State of Uttar Pradesh2, the Hon’ble
Supreme Court held that no litigant can play “hide and seek” with
1
(2010) 4 SCC 728
2
(2013) 2 SCC 398
6
the courts or adopt “pick and choose”. True facts ought to be
disclosed as the court knows law, but not facts. One, who does
not come with candid facts and clean breast cannot hold a writ of
the court with soiled hands. Suppression or concealment of
material facts is impermissible to a litigant or even as a technique
of advocacy. In such cases, the court is duty-bound to discharge
rule nisi and such applicant is required to be dealt with for
contempt of court for abusing the process of court.
8. In Sciemed Overseas Inc. v. Boc India Limited3, the Hon’ble
Apex Court, referring to Muthu Karuppan v. Parithi
Ilamvazhuthi4, in which it was held that the filing of a false
affidavit should effectively be curbed with a strong hand, held that
though the observation was made in the context of contempt of
court proceedings, but the view expressed must be generally
endorsed to preserve the purity of the judicial proceedings.
9. The appellants have abused the process of the Court and
have not approached this Court with clean hands.
3
(2016) 3 SCC 70
4
((2011) 5 SCC 496 : (2011) 2 SCC (Cri) 709)
7
10. While rejecting the explanation offered, we impose costs of
Rs.50,000/- (Rupees Fifty thousand only) on the appellants to be
paid by the appellants.
11. The learned counsel for the appellants has also filed her
affidavit, stating inter alia in para 8 as under:
“8. It is respectfully submit that, I am being a counsel I drafted the
contents of the affidavit only based on the instructions given by the
Petitioners and based on the Judgment and Decree passed in
O.S.No. 11 of 2018 dt.11.04.2022 particularly from Para No.4 that
despite receipt of summons the Defendants No.1 & 2 did not choose
to enter their appearance in the suit and were set-exparte. Further the
Petitioners and the briefing counsel namely Mr.K. Anand and K. Hari
Priya stated that they did not engaged any counsel and they did not
received any summons as such under their instructions, I prepared
the said affidavit and filed before this Hon’ble Court. That being a
counsel, I did not suppress any material facts and prepared the
affidavit and filed before this Hon’ble Court. That I only filed the
affidavit on the instructions of clients and briefing counsel as stated
above, I have no personal claim in the present case. I was acted only
on the instructions as stated above and not invited any averments on
my own to mislead this Hon’ble Court and suppressed any material
facts.”
12. Considering para 8 of the affidavit of the counsel and also
that the 2nd appellant has in his affidavit stated that the
instructions were given to the appellants’ counsel, (which are
found to be incorrect), we are not passing any order against the
counsel, but would observe that the appellants’ counsel, must
have been careful in drafting and with respect to the instructions
provided to her, in view of what was written in the judgment of the
Trial Court, she ought to have made efforts to verify the
8
correctness of instructions before filing the appeal and the
application.
13. In J.S.Jadhav v. Mustafa Haji Mohamed Yusuf 5, the
Hon’ble Apex Court observed and held that advocacy is not a
craft but a calling; a profession wherein devotion to duty
constitutes the hallmark. Sincerity of performance and
earnestness of endeavour are the two wings that will bear aloft
the advocate to the tower of success. Given these virtues other
qualifications will follow of their own account. This is the reason
why legal profession is regarded to be a noble one. But it cannot
be allowed to become a sorriest of trades. It will be useful to
quote what Sharaswood said of this profession. It is apt to refer
para (8) of J.S.Jadhav(supra), in which the Hon’ble Apex Court
quotes what Sharaswood said of this profession:
“8. Advocacy is not a craft but a calling; a profession
wherein devotion to duty constitutes the hallmark.
Sincerity of performance and earnestness of endeavour are
the two wings that will bear aloft the advocate to the tower
of success. Given these virtues other qualifications will follow
of their own account. This is the reason why legal profession is
regarded to be a noble one. But it cannot be allowed to become
a sorriest of trades. It will be useful to quote what Sharaswood
said of this profession:
“A lawyer, without the most sterling integrity, may
shine for a while with meteoric splendour; but his light will
soon go out in blackness of darkness. It is not in every
man’s power to rise to eminence by distinguished abilities.
5
(1993)2 SCC 562
9It is not in every man’s power, with few exceptions, to
attain respectability, competence, and usefulness. The
temptations, which beset a young man in the outset of his
professional life, especially if he is in absolute
dependence upon business for his subsistence, are very
great. The strictest principles of integrity and honor are his
only safety. Let him begin by swerving from truth or
fairness, in small particulars, he will find his character
gone — whispered away, before he knows it. Such a one
may not indeed be irrecoverably lost; but it will be years
before he will be able to regain a firm foothold. There is
no profession in which moral character is so soon fixed as
in that of the law; there is none in which it is subjected to
severer scrutiny by the public. It is well that it is so. The
things we hold dearest on earth, our fortunes, reputations,
domestic peace, the future of those dearest to us, nay,
our liberty and life itself, we confide to the integrity of our
legal counsellors and advocates. Their character must be
not only without a stain, but without suspicion. From the
very commencement of a lawyer’s career, let him cultivate
above all things, truth, simplicity and candor. They are
cardinal virtues of a lawyer. Let him always seek to have
a clear understanding of his object : be sure it is honest
and right and then march directly to it. The covert, indirect
and insidious way of doing anything, is always the wrong
way. It gradually hardens the moral faculties, renders
obtuse the perception of right and wrong in human
actions, weighs everything in the balance of worldly
policy, and ends most generally, in the practical adoption
of the vile maxim, „that the end sanctifies the means‟.”
Therefore an exacting standard is what is expected of an
advocate.”
14. In a different context i.e. professional misconduct, which we
are not observing in the present case, the Hon’ble Apex Court in
J.S.Jadhav(supra) referred to the judgment in M.Veerabhadra
Rao v. Tek Chand6, in which inter alia, it was held that the central
function that the legal profession must perform is nothing less
6
1984 Supp SCC 571
10
than the administration of justice. We reproduce para(9) of
J.S.Jadhav(supra) as under:
“9. This Court has taken the view in M. Veerabhadra Rao v.
Tek Chand as to how much in such a case professional
misconduct has to be dealt with. In that case, the advocate
committed forgery by attesting false affidavits which was
considered to be a serious misconduct. This Court pointed
out the duties of the members of the bar in the following
passage : (SCC pp. 587-88, para 30)
“Legal profession is monopolistic in character and
this monopoly itself inheres certain high traditions
which its members are expected to upkeep and
uphold. Members of the profession claimed that they are
the leaders of thought and society. In the words of Justice
Krishna Iyer in Bar Council of Maharashtra v. M.V.
Dabholkar2 the role of the members of the Bar can be
appreciated. He said:
„„The Bar is not a private guild, like that of
“barbers, butchers and candlestick-makers” but by
bold contrast, a public institution committed to
public justice and pro bono publico service. The
grant of a monopoly licence to practice law is
based on three assumptions : (1) There is a
socially useful function for the lawyer to perform,
(2) the lawyer is a professional person who will
perform that function, and (3) his performance as
a professional person is regulated by himself and
more formally, by the profession as a whole. The
central function that the legal profession must
perform is nothing less than the administration of
justice („The Practice of Law is a Public Utility‟ —
„The Lawyer, the Public and Professional
Responsibility‟ by F. Raymond Marks et al —
Chicago American Bar Foundation, 1972 pp. 288-
289). A glance at the functions of the Bar Council,
and it will be apparent that a rainbow of public
utility duties, including legal aid to the poor, is cast
on these bodies in the national hope that the
members of this monopoly will serve society and
keep to canons of ethics befitting an honourable
order. If pathological cases of member
11
misbehaviour occur, the reputation and credibility
of the Bar suffer a mayhem and who, but the Bar
Council, is more concerned with and sensitive to
this potential disrepute the few black sheep bring
about? The official heads of the Bar, i.e. the
Attorney-General and the Advocates-General too
are distressed if a lawyer “stoops to conquer” by
resort to soliciting, touting and other corrupt
practices.’
If these are the high exceptions of what is described as a
noble profession, its members must set an example of
conduct worthy of emulation. If any of them falls from that
high expectation, the punishment has to be commensurate
with the degree and gravity of the misconduct.”
15. In K.Anjinappa v. K.C.Krishna Reddy and another7, at
para No.29, it was held as under:
“29. In O.P. Sharma v. High Court of Punjab & Haryana8 ,
this Court has observed as under:
“39. An advocate should be dignified in his dealings
to the court, to his fellow lawyers and to the litigants.
He should have integrity in abundance and should
never do anything that erodes his credibility. An
advocate has a duty to enlighten and encourage the
juniors in the profession. An ideal advocate should
believe that the legal profession has an element of
service also and associates with legal service
activities. Most importantly, he should faithfully
abide by the standards of professional conduct and
etiquette prescribed by the Bar Council of India in
Chapter II, Part VI of the Bar Council of India
Rules.”
16. Let the costs be deposited by the appellants within a period
of one month before the Andhra Pradesh State High Court
Legal Services Committee, A.P.High Court.
7
(2022) 17 SCC 625
8
(2011) 6 SCC 86
12
17. Any further action pursuant to the order dated 03.07.2025
is not required.
18. The Registrar General to place on record the report of
compliance of this order by the appellants.
19. Let a copy of this order be sent to the learned Trial Court
and to the Andhra Pradesh State High Court Legal Services
Committee.
_____________________
RAVI NATH TILHARI, J
______________________________
MAHESWARA RAO KUNCHEAM, J
Date: 31.07.2025
Note:
L.R.Copy to be marked.
B/o.
Pab
13
14*THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM+ APPEAL SUIT NO.223 OF 2025
% Dated: 31.07.2025
# 1. A.S.Traders, represented by it’s Proprietor
A.Safar Ali
2. A.Safar Ali … Appellants
and
$ M.G.R.Rice Industries, Polamuru ….. Respondent
! Counsel for the Petitioner INTulasi
: Ms.Kalla THE HIGH COUR
Durgamba^ Counsel for the Respondent : Sri S.Siva Bhami Reddy.S
< GIST :
> HEAD NOTE :
? Cases referred :
1
(2010) 4 SCC 728
2
(2013) 2 SCC 398
3
(2016) 3 SCC 70
4
((2011) 5 SCC 496 : (2011) 2 SCC (Cri) 709)
5
(1993)2 SCC 562
6
1984 Supp SCC 571
7
(2022) 17 SCC 625
8
(2011) 6 SCC 86
15THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM
APPEAL SUIT NO.223 OF 2025
1. A.S.Traders, represented by it’s Proprietor
A.Safar Ali
2. A.Safar Ali … Appellants
and
$ M.G.R.Rice Industries, Polamuru ….. Respondent
DATE OF ORDER PRONOUNCED: 31.07.2025
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
Marked to Law Reporters/Journals.
3. Whether Their Lordship wishes Yes/No
to see the fair copy of the Judgment?
____________________
RAVI NATH TILHARI, J
______________________________
MAHESWARA RAO KUNCHEAM, J
16
[ad_1]
Source link