THE HONOURABLE SRI JUSTICE J.SREENIVAS RAO
CIVIL REVISION PETITION No.3004 of 2023
O R D E R:
The petitioner/plaintiff filed this Civil Revision Petition invoking the provisions of Article 227 of Constitution of India, aggrieved by the order passed by the learned Principal District and Sessions Judge at Kamareddy in C.M.A.No.1 of 2023 dated 16.06.2023 by setting aside the order dated 23.03.2022 passed by learned Senior Civil Judge at Kamareddy in I.A.No.58 of 2019 in O.S.No.94 of 2017 to set aside the ex parte decree dated 21.01.2019.
2. Heard Sri V.Venkata Mayur, learned counsel for the petitioner, and Sri B.Mahender Reddy learned counsel for the respondents.
3. For the sake of convenience the parties herein are referred to as they are arrayed in the suit in O.S.No.94 of 2017 before the trial Court.
4. Learned counsel for the plaintiff submits that the plaintiff filed a suit in O.S.No.94 of 2017 on the file of Senior Civil Judge, Kamareddy, against the defendants for seeking declaration and 2 recovery of possession of the suit schedule property to an extent of Ac.16.11 guntas in Sy.No.254 situated at Kyasampally village of Kamareddy Mandal and Kamareddy District. In the said suit, summons were served to the defendants and they have engaged counsel and he filed Vakalat and at their instance, the suit was underwent several adjournments for filing written statement. In spite of conditional order, they failed to file written statement and the defendants were made set ex parte on 09.03.2018. The trial Court, after considering the oral and documentary evidence adduced by the plaintiff and also after hearing the matter, was pleased to pass the judgment and decree on 21.01.2019. 4.1. He further submits that after long period, the defendants have filed application in I.A.No.58 of 2019 under Order IX Rule 13 R/w. Section 151 C.P.C. to set aside the ex parte decree along with condonation delay application in filing the above said application. The learned Senior Civil Judge allowed the condone delay petition and dismissed I.A.No.58 of 2019 by giving cogent reasons, by its order dated 23.03.2022. Aggrieved by the same, the defendants have filed C.M.A.No.1 of 2023 on the file of the learned Principal District and Sessions Judge at Kamareddy, along with application for condonation of delay 147 days. The lower appellate Court, 3 without properly considering the contentions of the plaintiff, allowed the appeal by its order dated 16.06.2023. 4.2. Learned counsel vehemently contended that the defendants have not prosecuted the case diligently and even after dismissal of the application in I.A.No.58 of 2019 by the trial Court, they have filed appeal with a delay of 147 days and by virtue of the impugned order passed by the lower appellate Court, the plaintiff will be put to irreparable loss and hardship, as he filed suit in the year 2017 and the same was decreed in the year 2019.
5. Per contra, learned counsel appearing on behalf of the defendants submits that the lower appellate Court, after considering the contentions of both parties, rightly passed the impugned order by setting aside the ex parte decree, by giving cogent reasons, and by virtue of the impugned order, no prejudice would be caused to the plaintiff and there is no illegality or irregularity in the impugned order to invoke the jurisdiction of this Court under Article 227 of Constitution of India. He also submits that the defendants have filed written statement and they will cooperate before the trial Court for disposal of the main suit without seeking un-due adjournments.
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6. Having considered the rival submissions made by both parties and after perusal of the material available on record, it clearly reveals that the plaintiff filed suit in O.S.No.94 of 2017 against the defendants for seeking comprehensive reliefs of declaration of title and recovery of possession of the suit schedule property to an extent of Ac.16.11 guntas in Sy.No.254 situated at Kyasampally Village of Kamareddy Mandal and Kamareddy District. The record further reveals that the defendants have not filed written statement and they were made set ex parte on 09.03.2018 and the trial Court, after taking into consideration the evidence adduced by the plaintiff, passed ex parte decree dated 21.01.2019. Thereafter, the defendants have filed application viz., I.A.No.58 of 2019 seeking to set aside the ex parte decree along with delay condonation application and the above said application was dismissed, by its order dated 23.03.2022. Aggrieved by the same, the defendants have filed C.M.A.No.1 of 2023 before the lower appellate court with a delay of 147 days and the said delay application was allowed subject to payment of costs of Rs.1,000/-, and set aside the ex parte decree and directed the trial Court to dispose the suit on merits.
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7. It is very much relevant to mention here that the plaintiff filed the suit in the year 2017 and the defendants have not prosecuted the suit proceedings diligently. The trial Court passed ex parte decree on 21.01.2019. Even after dismissal of I.A.No.58 of 2019, the defendants have not filed appeal within the period of limitation. The conduct of the defendants clearly shows that they are not diligent in prosecuting the proceedings before the Courts below. However, the nature of the suit filed by the plaintiff is comprehensive suit and with an intention to give opportunity to the defendants, the lower appellate Court passed the impugned order without imposing conditions and by virtue of the impugned order, the suit proceedings has to be commenced afresh. Simultaneously, if the ex parte decree is not set aside, the defendants will forego their legitimate rights to contest the suit proceedings on merits and great prejudice would be caused to them more than the plaintiff.
8. Taking into consideration of the facts and circumstances of the case and also to render the substantial justice to the parties, invoking the inherent powers and supervisory jurisdiction of this Court conferred under Article 227 of the Constitution of India, the impugned order passed by the lower appellate Court in C.M.A.No.1 of 2023 dated 16.06.2023 is confirmed, subject to condition that 6 the defendants shall pay an amount of Rs.25,000/- (Rupees Twenty Five Thousand only) towards costs in favour of the plaintiff within a period of four (4) weeks from today. The learned Senior Civil Judge, Kamareddy, is directed to dispose of the main suit i.e., O.S.No.94 of 2017, within a period of six (6) months from the date of receipt of copy of this order. The plaintiff and defendants shall cooperate with the trial Court for disposal of the suit, without taking undue adjournments.
9. With the above directions, the Civil Revision Petition is disposed of, accordingly.
Miscellaneous applications, if any pending, shall stand closed.
______________________ J.SREENIVAS RAO, J Date:03.11.2023 Note:
Issue C.C. within one week.
(b/o) mar