Telangana High Court
Bayyagoni Balaiah vs G Yellamma on 27 February, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Revision Petition No.3511 OF 2023
ORDER:
Aggrieved by the order dated 18.10.2023 in I.A.No.1337 of 2022 in O.S.No.92 of 2013 (hereinafter will be referred as 'impugned order') passed by the learned Senior Civil Judge, Sangareddy, the petitioner/defendant filed the present Civil Revision Petition to set aside the impugned order, wherein the petition filed by the petitioner/defendant under Section 5 of the Limitation Act, was dismissed.
2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the Senior Civil Judge, Sangareddy (hereinafter will be referred as 'trial Court').
3. The brief facts of the case as can be seen from the record available before the Court that necessitated the revision petitioner to file the present Civil Revision Petition are that the respondent/plaintiff filed suit for partition in respect of suit schedule property against the sole petitioner/defendant. During the pendency of the suit the petitioner/defendant was set ex parte on 10.06.2013 and thereafter the suit was preliminarily decreed on 29.07.2013. The petitioner/defendant has filed petition under Section 5 of the Limitation Act vide 2 MGP,J Crp_3511_2023 I.A.No.1337 of 2022 to condone the delay of 3302 days in filing the petition to set aside the exparte decree dated 29.07.2013. The brief averments of the affidavit filed in support of the petition in I.a.No.1337 of 2022 are as under:
a) After filing of the suit, he received summons, approached respondent/plaintiff's counsel, who called the respondent/plaintiff, settled the matter out of the Court and as peer settlement he agreed to pay Rs.10 lakhs to the respondent/plaintiff. Thereafter, the petitioner/defendant arranged the money within one month, approached the counsel for the respondent/plaintiff but the respondent/plaintiff did not turn up and the petitioner/defendant did not approach the Court to contest the case under the impression that the dispute was settled.
b) On 03.12.2021 the petitioner/defendant on receipt of notice from Advocate Commissioner, he verified and came to know that the suit was decreed ex parte against him and also came to know about the filing of petition for passing final decree and appointment of advocate commissioner without any notice to the petitioner/defendant. However, the advocate commissioner M. Vijay Raj sent notice to the
3 MGP,J Crp_3511_2023 petitioner/defendant on 03.12.2021, wherein there was no date and time fixed for execution of commissioner warrant.
c) The petitioner/defendant gave request letter to Advocate Commissioner to postpone the commission as the same was not within his knowledge, more particularly when there are standing crops on the suit schedule properties. But the Advocate Commissioner in collusion with the respondent/plaintiff as well as her counsel filed the report without following the mandatory provisions. The suit schedule properties are self acquired properties of petitioner/defendant, however, the defendant requested time to arrange the money for settlement and accordingly the learned counsel for the plaintiff assured for settlement. Thus, the petitioner/defendant could not appear before the Court on 10.06.2013 due to which the trial Court passed ex parte decree. Hence, prayed to condone the delay of 3302 days in filing petition to set aside the ex parte decree.
4. The respondent/plaintiff filed counter denying the petition averments with a prayer to dismiss the petition and the brief averments of the counter affidavit are as under:
a) The petitioner/defendant was served with notices in both the petitions filed for passing final decree and appointment of 4 MGP,J Crp_3511_2023 advocate commissioner and the Court waited till 4.00 PM on 05.10.2021 and the petitioner/defendant was set ex parte on 25.10.2021 and thereafter Advocate Commissioner was appointed. The respondent/plaintiff is not aware about the alleged settlement put forth by the petitioner/defendant and in fact the petitioner/defendant threatened respondent/plaintiff to see her end if she enters the suit schedule property and probably that is the reason why the petitioner/defendant did not approach the Court and contest the case.
b) The petitioner/defendant filed the petition at belated stage. The Advocate Commissioner issued notice and work memo notice dated 03.12.2021 to Ameenpur Mandal Surveyor to conduct the survey and fix up the boundaries with metes and bounds. Accordingly, the Mandal Surveyor has conducted survey in the presence of plaintiff, defendant, witnesses, counsel, Village Revenue Assistant and divided the properties into two equal parts. As per the advocate commissioner report, no standing crops were available over the suit schedule property.
c) After completion of survey, the Management of Sand Stone Venture removed the boundaries in respect of some of the suit schedule properties and on that the petitioner/plaintiff 5 MGP,J Crp_3511_2023 approached the Ameenpur Police Station, lodged a complaint, which was registered as Crime No.403 of 2021 for the offence under Sections 447 and 427 of the Indian Penal Code. The defendant also removed some of the boundaries in respect of suit schedule properties and on that the plaintiff lodged a complaint, which was registered as Crime No.2 of 2022 (C.C.No.44 of 2022) for the offence under Sections 447 and 427 of the Indian Penal Code against the defendant.
5. The trial Court after considering the rival contentions, dismissed the petition mainly on the ground that the petitioner/defendant failed to explain day to day delay. Aggrieved by the same, the petitioner/defendant filed the present Civil Revision Petition to set aside the impugned order.
6. Heard both sides and perused the record including the grounds of revision.
7. Admittedly, the suit filed by the respondent/plaintiff is for partition of the suit schedule properties. The trial Court has passed ex parte preliminary decree, as the defendant failed to contest the case. The only ground raised by the petitioner/defendant for his non appearance before the trial Court is that the plaintiff and defendant entered into a 6 MGP,J Crp_3511_2023 monetary settlement before the counsel for the plaintiff and for arranging the money he took a month's time and when the defendant approached the counsel for the plaintiff, the plaintiff did not turn up. It is the contention of the defendant that he was not aware of the orders setting him ex-parte and also the ex parte preliminary decree passed against him and on receipt of notice from the Advocate Commissioner, he came to know about the orders passed against him.
8. In a suit for partition all the sharers are just and necessary for proper adjudication of the suit. The plaintiff filed the suit for partition of suit schedule properties into two equal shares and to allot one such share to the plaintiff and other share to the defendant on the ground that the suit schedule properties are ancestral properties. But the contention of the defendant is that the suit schedule properties are his self acquired properties and they are not liable for partition. The dispute is between the sister and brother in respect of ancestral/self acquired properties. Whether the suit schedule properties are ancestral properties or self acquired properties is the question that needs to be adjudicated in the suit by giving opportunities to both the sides. It is settled law that a 'lis' has to be decided by adhering to one of the principles of natural justice i.e., after hearing both the sides. It is the contention of 7 MGP,J Crp_3511_2023 the defendant that he was not even served notice in the petition filed by the plaintiff for passing final decree and appointment of advocate commissioner. It is settled law that even an ex- parte judgment should contain reasons. The Code of Civil Procedure does not refer either an ex-parte judgment or an ex- parte decree and it refers only to a judgment and a decree, which should contain reasons and should be in conformity with the provisions of Section 2 (9) read with Order XX Rule 4 of the CPC. As seen from the record, the trial Court has passed ex- parte preliminary decree in the form of a docket order dated 29.07.2013, which concluded in seven lines including the result. Such an ex parte preliminary decree is appearing to be cryptic as it lacks reasons for arriving to such a decision. It is to be seen that the ex parte preliminary decree was passed on 29.07.2013 and 8 years thereafter i.e., on 03.12.2021 the defendant was served with the notice in the interlocutory applications filed by the plaintiff for passing final decree and appointment of advocate commissioner. There is no reason as to why it took eight long years for proceedings further in the case, more particularly, when the respondent/plaintiff was granted ex-parte preliminary decree on 29.07.2013. It is not the case of the respondent/plaintiff that the petitioner/defendant is aware of the ex parte preliminary decree passed against him. As 8 MGP,J Crp_3511_2023 per the contention of the defendant, it is on 03.12.2021, he came to know about the passing of ex-parte preliminary decree. Thus, this Court is of the opinion that the above mentioned delay of eight years cannot be brushed against the petitioner/defendant. What we have here is a pure civil matter. Delay can be condoned, when sufficient reason is shown before the Court. Though the applicant, who seeks condonation of delay must explain the delay of each day, it is true that the Courts should not be pedantic in their approach while condoning the delay, and explanation of each day's delay should not be taken literally, but the fact remains that there must be a reasonable explanation for the delay.
9. Furthermore, in Bhivchandra Shankar More v. Balu Gangaram More and others 1 the Honourable Supreme Court observed as under:
"18. It is pertinent to note that as per Section 97 CPC where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. The object is that the questions decided by the court at the stage of passing preliminary decree cannot be challenged at the time of final decree. If no appeal had been preferred against the preliminary decree, the suit filed by the respondents-plaintiffs being a suit for partition, the appellant would be deprived of the opportunity in challenging the decree on merits. In the interest of justice, the appellant and respondents No.14 and 15 are to be given an opportunity to challenge the ex-parte decree dated 04.07.2008 on merits, notwithstanding the dismissal of their application filed under Order IX Rule 13 CPC." 1
(2019) 6 SCC 387 9 MGP,J Crp_3511_2023
10. Apart from the principle laid down in the above said citation, let's not forget one of the crucial principles of natural justice i.e., "Audi Alteram Partem" which means "let the other party be heard." According to this principle, all parties to a dispute should be allowed to be heard and present their case. In other words, the principle asserts that no party should be condemned unheard and each party has the right to a fair hearing in any dispute. In Robin Thapa v. Rohit Dora 2 the Honourable Supreme Court while affirming an order of setting aside an ex-parte decree, observed 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."
11. In view of the above facts and circumstances, this Court is of the considered view that the petitioner, who is defendant in the suit for partition, shall be given an opportunity to put forth his contentions, enabling the trial Court to pass an appropriate judgment on merits rather than an ex-parte preliminary decree, however, on certain terms and conditions.
12. Accordingly, the Civil Revision Petition is allowed and the impugned order is hereby set aside and thereby the I.A.No.1337 2 2019 (7) SCC 359 10 MGP,J Crp_3511_2023 of 2022 in O.S.No.92 of 2013 is allowed by condoning the delay in filing a petition to set aside the ex-parte preliminary decree in O.S.No.92 of 2013 subject to payment of Rs.5,000/- to the High Court Legal Services Committee, High Court for the State of Telangana within (15) days from the date of receipt of the copy of this order. Since the suit is of the year 2013, the trial Court shall dispose of the case as expeditiously as possible preferably within three (03) months from the date of receipt of copy of this order. Further, the petitioner/defendant shall cooperate with the trial Court in disposing of the case as expeditiously as possible. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand closed.
_______________________________ JUSTICE M.G.PRIYADARSINI Date: 27.02.2024 AS