THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
C.R.P.Nos.1677 & 1820 OF 2017
COMMON ORDER:
C.R.P.No.1677 of 2017 under Article 227 of the Constitution
of India is directed against the docket order dated 09.12.2016 in
I.A.No.17 of 2016 in O.S.No.392 of 2010, on the file of the
Principal Senior Civil Judge, Ranga Reddy, at L.B.Nagar, wherein
the said application filed by petitioners herein (J.Dr.Nos.1 to 3)
under Section 5 of the Limitation Act to condone the delay of
40 days in filing the petition to set aside the ex parte decree dated
20.10.2015, was dismissed.
2. C.R.P.No.1820 of 2017 under Article 227 of the Constitution
of India is directed against the order dated 22.02.2017 in E.P.No.20
of 2017 in O.S.No.392 of 2010, on the file of the Principal Senior
Civil Judge, Ranga Reddy, at L.B.Nagar, wherein the said petition
filed by the 1st respondent herein (decree holder) under Order
XXI Rule 32 of the Civil Procedure Code (for short 'the CPC') to detain JDr.Nos.1 to 3 and their men or their representative in the 2 civil prison for disobeying the judgment and decree passed in O.S.No.392 of 2010 dated 30.10.2015, was allowed.
3. Heard the learned counsel for the petitioners and learned counsel for respondent No.1 in both the revisions. Perused the record.
4. The petitioners are judgment debtors Nos.1 to 3 in E.P.No.20 of 2017 filed by respondent No.1 herein-decree holder. Respondent Nos.1 and 5 herein, who are plaintiff Nos.5 and 2 in the suit, and others filed the suit O.S.No.392 of 2010 for perpetual injunction restraining the petitioners herein and others from interfering with their peaceful possession and enjoyment over plaint 'A' to 'F' schedule properties. While so, the 1st respondent herein filed E.P.No.20 of 2017 in O.S.No.392 of 2017 under Order XXI Rule 32 CPC alleging that the judgment debtors are trying to interfere with the possession of the plaintiffs in spite of the decree by violating the orders of the Court whereunder the petitioners/JDrs were set ex parte and the said application was allowed and warrant of arrest was issued against them under 3 Order XXI Rule 32(1) CPC. Aggrieved by the same, the revision petitioners filed the present revision petition.
5. Learned counsel for the petitioners submits that the petitioners have filed an application under Order IX Rule 9 CPC to set aside the ex parte decree along with an application under Section 5 of the Limitation Act to condone the delay of 40 days in filing the petition to set aside the ex parte decree dated 30.10.2015. The said application was dismissed. Learned counsel further submits that as against the said order, the petitioners preferred C.R.P.No.1677 of 2017 and during the pendency of the suit proceedings, the 1st respondent herein filed the present EP and the trial Court passed the impugned orders without knowledge of the petitioners and set them ex parte. Learned counsel further submits that the trial Court committed error in passing such order without proper enquiry and the same is liable to be set aside. In support of his submissions, learned counsel placed reliance on the following decisions:
i. ROBIN THAPA v. ROHIT DORA1 1 (2019) AIR SC 3225 4 ii. G.GOVINDAPPA v. P.R.RAM KRISHNA RAO2 iii. EKKALDEVI DEVAIAH v. BOJJA LAXMI AND OTHERS3 iv. BHANU KUMAR JAIN v. ARCHANA KUMAR AND ANOTHER4
6. Per contra, learned counsel for respondent No.1 submits that the suit filed for perpetual injunction was decreed against the petitioners on 30.10.2015 and the 1st respondent herein filed application to set aside the ex parte along with an application to condone the delay of 40 days in I.A.No.17 of 2016 and the said application was dismissed on merits. Learned counsel further submits that in spite of the ex parte order and decree dated 30.10.2015 directing the petitioners herein not to interfere with the peaceful possession and enjoyment of the 1st respondent and others in respect of A' to 'F' schedule properties, the petitioners herein have violated the orders of the court and the trial Court had rightly allowed the application filed by respondent No.1 and passed the impugned order and the same does not suffer from any infirmity and prayed to dismiss the civil revision petition. 2 2017 (2) ALD 10 3 2017(5) ALD 194 4 (2005) AIR SC 626 5
7. A perusal of the material on record discloses that the suit filed by respondent Nos.1 and 5 herein along with others in O.S.No.392 of 2010 for perpetual injunction against the revision petitioners was decreed ex parte on 30.10.2015. Subsequently, the revision petitioners filed an application to set aside the ex parte decree under Order IX Rule 13 CPC along with an application in I.A.No.17 of 2016 under Section 5 of the Limitation Act to condone the delay of 40 days in filing the said application to set aside the ex parte decree. The revision petitioners stated in the application that they have filed written statement and also filed an application under Section 10 CPC and during the pendency of the said application, on 22.07.2015, noting that the revision petitioners were absent, the evidence of P.Ws.1 and 2 was closed and as no notice was given to the revision petitioners, the matter was posted for defendants' evidence and later the defendants' evidence was closed and the matter was posted for arguments. An ex parte judgment and decree was passed on 30.10.2015. It is also pleaded that the revision petitioners were not having knowledge about the commencement of the trial and also about the dismissal of the 6 application filed under Section 10 CPC. The petitioners stated that the respondents forged their signatures on chief affidavits and filed the same in the Court, as though they were having notice of the proceedings. The petitioners have also narrated sequence of events as to the lack of communication and the fraud played by the counsel for the other side. The respondents in their reply stated that the allegations in the petition are all false and the petitioners have failed to explain sufficient cause for the delay of 40 days in filing the said application.
8. In G.Govindappa's case (2 supra), this court placed reliance on the judgment of the Hon'ble Apex Court in N.BALAKRISHNAN v. M.KRISHNA MURTHY5, wherein it was held as under:
"13. "It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean 5 AIR 1998 SC 3222 7 against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss".
14. In this case explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising revisional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs. Fifty thousand from the delinquent advocate through the Consumer Disputes Riderless Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial court but on a condition that appellant shall pay a sum of Rupee Ten thousand to the respondent (or deposit it in this court within one month from this date.
9. In Robin Thapa's case (1 supra), the Hon'ble Apex Court held at para 8 as under:
"Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible, adjudication be done on merits.8
10. In the instant case, the trial Court has failed to take into consideration the crucial aspect that the petitioners herein filed written statement stating that when the chief affidavits were filed, which according to them, notice was ordered on the chief affidavits and alleged that the 1st respondent's counsel played fraud as though notice was received by the revision petitioners and the case was commenced and due to the absence of their counsel, they were set ex parte and an ex parte decree was passed. In the light of these circumstances, the trial Court ought to have considered the delay treating the same as sufficient cause, as held by the Hon'ble Apex Court in Robin Thapa's case (1 supra). The trial Court should have made an endeavour and seen that a litigation is based on adjudication on the merits in rendering the justice to both parties in appropriate manner. The trial court ought not to have terminated the litigation on the default of either of the parties and their adjudication ought to have been based on merits, which is the concern of the cause of justice to be adjudicated by the trial Courts.
11. In the present case, the explanation offered by the revision petitioners is not tainted by any mala fides nor it amounts to 9 adopting dilatory tactics to protract the proceedings and their action appears to be based on valid reasons and the delay of 40 days can be condoned in exercise of discretion of Section 5 of the Limitation Act. Consequently, C.R.P.No.1677 of 2017 filed challenging the impugned order dated 09.12.2016 in I.A.No.17 of 2016 is liable to be set aside.
12. In the result, C.R.P.No.1677 of 2017 is allowed. The docket order dated 09.12.2016 in I.A.No.17 of 2016 in O.S.No.392 of 2010 of 2010 is hereby set aside. Consequently, I.A.No.17 of 2016 stands allowed. There shall be no order as to costs.
13. Coming to C.R.P.No.1820 of 2017, the impugned order dated 22.02.2017 in E.P.No.20 0f 2017 was passed setting the revision petitioners ex parte without giving any valid reasons. In view of my findings in C.R.P.No.1677 of 2017 wherein the application filed to condone the delay of 40 days in filing the petition to set aside the ex parte decree was allowed, the orders in present civil revision petition are liable to be set aside. 10
14. In the result, C.R.P.No.1820 of 2017 is allowed. The order dated 22.02.2017 in E.P.No.20 of 2017 in O.S.No.392 of 2010 is hereby set aside. There shall be no order as to costs.
15. Miscellaneous petitions, if any pending, stand closed.
_______________________ A.SANTHOSH REDDY, J 21.04.2023 Lrkm