Telangana High Court
M/S P. Kishan Lal Dawasaz, A Registered ... vs Late Kamala Devi Mundadadied on 21 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL MISCELLANEOUS APPEAL No.663 of 2023
ORDER:
This Appeal is filed aggrieved by the order, dated 12.09.2023, passed by the X Additional Chief Judge, City Civil Court, Hyderabad in I.A.No.710 of 2017 in O.S.No.470 of 2015, whereby the application filed under Order IX Rule 13 r/w Section 151 CPC praying to set aside the ex parte judgment dated 31.10.2016 in O.S.No.470 of 2015 was dismissed.
2. The petitioner is defendant No.10 in the subject suit which was filed for partition and separate possession of the suit schedule property. In the said suit, defendant Nos.1 to 5 and 9 remained ex parte and the right of filing written statement by defendant Nos.6 to 8 and 10 to 12 was forfeited. Subsequently, the trial Court held that the plaintiff is entitled for partition of the suit schedule property and for allotment of her 1/3rd share by metes and bounds and accordingly, allowed the said suit passing preliminary decree, vide its judgment dated 31.12.2016
3. The appellant, who is defendant No.10 in the said suit, filed an application in I.A.No.710 of 2017 seeking to set aside the ex pate judgment. The trial Court by the impugned order dismissed 2 LNA, J CMA.No.663 of 2023 the said application. Aggrieved by the same, the present Appeal is filed.
4. Heard Sri Keerthi Arun Kumar, learned counsel for the appellant. Despite service of notice on the respondents, none choose to enter appearance through counsel and contest the matter. Perused the entire material available on record.
5. In the grounds of appeal, the appellant contended that written statement was filed along with two applications on 12.06.2017. However, the trial Court failed to consider the same and in fact, erroneously held that the written statement was not filed by the appellant to show his bona fides. However, a perusal of the record shows that the written statement purported to have been filed by the appellant along with two applications is not placed on record.
6. Learned counsel for the appellant contended that the reasons mentioned in both the applications being one and the same, the trial court having allowed the delay application, ought to have allowed the application seeking to set aside the ex parte decree, which is a consequential relief. However, the trial Court failed to consider the same and dismissed the said application. He further contended that 3 LNA, J CMA.No.663 of 2023 by dismissing the application seeking to set aside the ex parte decree, the trial Court deprived the petitioner of the opportunity to contest the suit. Hence, he prayed to allow the Appeal.
7. Learned counsel for the appellant relied upon the decisions of the erstwhile High Court of Andhra Pradesh in Kavali Narayana and Others Vs. Kavali Chennamma 1 and P.Buchanna Vs. B.Yadagiri 2.
8. In P.Buchanna's case (2nd cited supra), the issue involved is whether a single application could have been filed by the petitioner therein for condonation of delay and also to set aside the ex parte decree. The High Court of Andhra Pradesh placed reliance on various judgments of the Division Bench of the erstwhile High Court of Andhra Pradesh wherein it was held that as per Rule 55 of the Rules of 1980, filing of individual applications for separate reliefs is not a universal principle and as regards the applications under Order IX Rule 13 CPC, condonation of delay, whenever such applications are filed beyond the stipulated period of limitation, is interconnected with the main relief viz., setting aside of the ex parte decree, one can exist in the absence of the other. 1 MANU/AP/0002/2005 2 MANU/AP/0068/2017 4 LNA, J CMA.No.663 of 2023 Ultimately, the erstwhile High Court of Andhra Pradesh allowed the petition filed seeking to condone the delay in filing the application to set aside ex parte decree and also set aside the ex parte decree.
9. In the instant case, the appellant admittedly filed two separate applications viz., one for condonation of delay in filing the application to set aside the ex parte decree and one application to set aside the ex pate judgment. Therefore, the aforesaid judgment does not apply to the facts of the present case and is of no help to the appellant.
10. In Kavali Narayana's case (first cited supra), the erstwhile High Court of Andhra Pradesh observed that the reasons pleaded for condonation of delay are justifiable and further, in view of the fact that the reasons pleaded for condonation of delay and setting aside the ex parte preliminary decree are one and the same, while allowing the application for condonation of delay in filing the application to set aside the ex parte order, the application seeking to set aside the ex parte decree was also allowed.
11. In the given facts and circumstances of the case, the aforesaid judgment squarely applies to the case on hand. 5
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12. In the instant case, the undisputed facts are that the right of the appellant, who is defendant No.10 in the suit, for filing written statement was forfeited on 28.12.2015. Subsequently, he filed two applications, viz., one for reopening the suit and one for setting aside the order dated 28.12.2015.
13. The trial Court dismissed both the applications on 31.10.2016 and on the even date, the trial Court passed preliminary decree in favour of the plaintiff. Subsequently, the appellant filed two applications, viz., I.A.No.442 of 2017 seeking to condone the delay in filing the application for setting aside the ex parte order and I.A.No.470 of 2015 seeking to set aside the ex parte order. The trial Court by its order dated 30.08.2017 allowed the application filed seeking condonation of delay. The matter was carried in Revision before this Court by the plaintiff and the said CRP was dismissed.
14. Here, it is trite to note that the reasons putforth by the appellant in both the applications are almost one and the same. But, the trial Court instead of adjudicating both the aforesaid applications together, initially allowed the application filed for condonation of delay in filing the application to set aside the ex 6 LNA, J CMA.No.663 of 2023 parte order, vide order dated 30.08.2017, and kept the application filed to set aside ex parte order pending. Subsequently, the trial Court passed the impugned order on 12.09.2023 observing that the appellant failed to show any satisfactory and reasonable cause to consider the application filed to set aside the ex parte order and accordingly, dismissed the same.
15. It is to be seen that same reasons were shown by the appellant for condoning the delay and also for setting aside the ex parte decree. In such an event, it is not explicit as to how the trial Court dismissed the application seeking to set ex parte decree while it allowed the application filed for condoning the delay in filing the same.
16. Further, it is settled principle of law that when valuable immovable property rights are involved, the Court should ordinarily afford opportunity of putting forth their case to both the parties rather than taking a decision by hearing one party. The present suit is filed seeking partition and separate possession of the suit schedule properties, therefore, substantial rights of the parties are involved. In such an event, the trial Court ought to have adopted a more pragmatic view and keeping in view the interests of 7 LNA, J CMA.No.663 of 2023 both the parties and their rival claims, it ought to have allowed the application filed seeking to set aside the ex parte decree. But, the trial Court failed to do so.
17. Further, the judgment and decree passed by the trial Court in the subject suit is an ex parte one. The appellant, who is arrayed as defendant No.10, claims to be a bonafide purchaser of the suit schedule property for valuable consideration. Therefore, if the present appeal is allowed and the appellant is permitted to contest the suit, no prejudice would be caused to the respondents and on the other hand, the rights and claims of both the parties will be crystallized after full-fledged trial and the matter would be decided on merits and. When substantial rights in immovable property are involved, it is desirable that the matter be adjudicated on merits instead of passing ex parte judgment and decree.
18. In view of the foregoing discussion and reasons and the ratio laid down in Kavali Narayana's (1st cited supra), this Court is of the considered view that the trial Court committed irregularity in dismissing the application filed by the appellant seeking to set aside the ex parte judgment and therefore, the impugned order is liable to be set aside.
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19. Accordingly, the CMA is allowed and the order, dated 12.09.2023, passed by the Court of X Additional Chief Judge, City Civil Court, Hyderabad in I.A.No.710 of 2017 in O.S.No.470 of 2015, is set aside and consequently, O.S.No.470 of 2015 is restored to the file of the said Court. There shall be no order as to costs.
20. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date:21.03.2024 dr