THE HONOURABLE SRI JUSTICE R.RAGHUNANDAN RAO
CIVIL REVISION PETITION No.366 of 2021
ORDER:
The petitioner has filed proof of service vide memo bearing USR No.38239 of 2021 on 05.08.2021. The consignment track report shows that the notice has been served on the 1st respondent on 05.07.2021.
2. The notice sent by the Court has been returned with endorsement refused and returned to sender. In these circumstances, there is service of notice on 1st respondent. Cause title itself provides that 2nd respondent is not a necessary party.
3. The 1st respondent herein had filed O.S.No.37 of 2012 in the Court of the Principal Junior Civil Judge, Narsipatnam for permanent injunction restraining the petitioner along with 2nd respondent herein from interfering with the possession and enjoyment of the 1st respondent over the plaint B schedule property. The petitioner had filed written statement and the 1st respondent had adduced the evidence as plaintiff by examining Pws.1 to 3. Thereafter, the suit was disposed of on 04.06.2018 by way of an ex parte order on the ground that the petitioner had not attended the Court. The petitioner had moved a petition under Order 9 Rule 13 CPC seeking a direction from the Court to set aside the ex parte order, dated 04.06.2018. This application was dismissed by the trial Court on 09.02.2021 on the ground 2 that an application under Order 9 Rule 13 CPC is not permissible as the petitioner should have taken recourse to Order 9 Rule 6(a) CPC in terms of Order 17 Rule 2 CPC only.
4. Heard Sri N.Sai Phanindra Kumar, representing Sri S.V.S.S.Siva Ram, learned counsel for the petitioner.
5. Order 9 Rule 6 CPC stipulates that where the plaintiff appears and the defendant does not appear when the suit is called for hearing, the Court may pass an order ex parte if it is proved that summons were duly served. The trial Court held that a petition filed under Order 9 Rule 13 CPC subsequent to the ex parte order passed under Order 17 Rule 2 CPC, is not maintainable. However, the trial Court does not give any reasons as to why the Order 9 Rule 13 CPC is not permissible.
6. Sri N.Sai Phanindra Kumar relies upon the judgments of the Hon'ble Supreme Court in Prakash Chander Manchanda and another vs. Janki Manchanda1 and G.Ratna Raj (Died) by Legal Representatives vs. Sri Muthukumarasamy Permanent Fund Limited and another2, wherein the Hon'ble Supreme Court had held that an application under Order 9 Rule 13 CPC, against an ex parte order passed under Order 17 Rule 2 CPC, is maintainable.
1 (1986) 4 SCC 699 2 (2019) 11 SCC 301 3
7. In the light of the said judgments, the order of the trial Court holding that such an application is not maintainable is clearly incorrect.
8. In the circumstances, the order of the trial Court contained in the docket order of return in I.A.Sr.No.-- of 2018 in O.S.No.37 of 2012, dated 09.02.2021, is set aside and remanded back to the trial Court for an appropriate decision on the merits of the application, after numbering the said application.
9. The Civil Revision Petition is, accordingly, allowed. There shall be no order as to costs.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
_________________________ JUSTICE R.RAGHUNANDAN RAO Date : 02.02.2022 SPP 4 THE HONOURABLE SRI JUSTICE R.RAGHUNANDAN RAO CIVIL REVISION PETITION No.366 of 2021 Date : 02.02.2022 SPP