Shaik Althaf, Guntur Dt., vs Chinthalapati Suvarchala Devi, ...
2022 Latest Caselaw 5484 AP

                                 1



       THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

             CIVIL REVISION PETITION No.286 of 2015

O R D E R:

The present Civil Revision Petition is filed by the petitioner

under Section 115 of Civil Procedure Code (in short CPC) against

the orders passed by the learned Additional District Judge-cum-

Judge, Family Court, Guntur, in Civil Miscellaneous Appeal No.2 of

2014 dated 26.09.2014 wherein and whereby learned Judge

dismissed Civil Miscellaneous Appeal filed by the petitioner and

confirmed the orders passed by learned Senior Civil Judge,

Mangalagiri, in I.A.No.296 of 2011 in O.S.No.28 of 2009.

2. The revision petitioner, who is defendant in O.S.No.28 of

2009, filed petition in I.A.No.296 of 2011 under Order IX Rule 13 of

CPC to set aside ex parte decree dated 21.10.2010. The learned

Senior Civil Judge, Mangalagiri, has dismissed the said petition by

an order dated 04.02.2013. Then the petitioner preferred

C.M.A.No.2 of 2014, which also dismissed by learned appellate

Judge by order dated 26.09.2014 on the ground that petitioner

came up with all false allegations that he went to Karnataka and

he could not even file written statement as his counsel not

informed him the date of adjournment.

3. The main suit was originally filed by the respondent for

recovery of money from the revision petitioner basing on

a promissory note.

4. The case of the petitioner is that though he is a resident of

Mangalagiri Town, after receiving the suit summons he engaged an

advocate and thereafter to eke out his livelihood, he went to

Karnataka State to do garments business and he could not contact

his counsel and then recently about two days back he came to his

native place to celebrate Bakrid festival and then, on enquiry, he

came to know that his case was disposed of on 21.10.2010. He also

stated that as his counsel not filed written statement on his behalf,

he was set ex parte on 19.06.2009 and thereafter, ex parte decree

was passed and there was no willful default or negligence on his

part. For which, respondent filed counter denying the allegations

made in the affidavit of the petitioner. It is the contention of the

respondent/plaintiff that petitioner came up with petition only to

drag on the matter and previously he was set ex parte on

19.06.2010 for not filing written statement and thereafter, he filed

petition to set aside the ex parte order, which was allowed on

09.02.2010 and later he filed written statement and when the case

was posted for trial, one Smt.T.Vijaya Lakshmi filed I.A.No.182 of

2010 questioning attachment of immovable property of the

petitioner before judgment, which petition was dismissed on

merits on 21.10.2010 and thereafter, once again the petitioner was

set ex parte and then petitioner came up with the petition with all

false allegations. He also specifically stated that as per the

contents in affidavit filed in I.A.No.1019 of 2009, which petition

filed by the petitioner to set aside the ex parte orders wherein it is

mentioned that he was very much available at Mangalagiri and he

never left for Karnataka which cause he invented only for the

purpose of filing of petition.

5. The learned trial Judge after hearing both sides dismissed

the petition filed by the petitioner and the same was also

confirmed by learned appellate Judge.

6. Aggrieved by the orders of appellate Judge, the present

revision petition is filed by the petitioner on the ground that orders

passed by the learned appellate Judge are not sustainable and

procedural laws are hand maid of substantive law, they are meant

for to sub-serve justice, but not to subvert justice or substantive

rights. He prays to set aside the orders of learned appellate Judge

passed in Civil Miscellaneous Appeal No.2 of 2014 and allow his

petition filed under Order IX Rule 13 CPC.

7. I have heard learned counsel for the revision petitioner.

8. The learned counsel for the revision petitioner mainly

contended that as petitioner went to Karnataka State for his

livelihood, he could not proceed with the trial of the case, unless

opportunity is given to him, he cannot put forth his case before the

trial Court. He prays to allow the revision petition.

9. Now, the point for determination is: "Whether the order

under challenge is sustainable and tenable and whether the

same warrants any interference of this Court under Section 115

of CPC?"

10. POINT: On perusal of contents of the affidavit of revision

petitioner, which extracted by learned appellate Judge which

shows that reason for not proceeding with the case by the

petitioner was that he went to Karnataka State for doing garments

business. It is also stated that as he could not file written

statement, ex parte decree has been passed against him.

Whereas, counter of respondent which discussed by learned

appellate Judge clearly shows that previously petitioner was set ex

parte in the suit for not filing written statement and thereafter, he

filed petition to set aside ex parte orders, which was allowed and

thereafter a petition filed by third party claiming rights over the

attached property before judgment, which was said to be

dismissed and then, again petitioner was set ex parte by the trial

Court and ex parte decree was passed on 21.10.2010. The

contents of counter filed by the respondent are not denied by the

revision petitioner by filing any rejoinder which shows that the

petitioner has not mentioned real facts in his affidavit filed in

support of his petition under Order IX Rule 13 of CPC, which rightly

observed by the learned appellate Judge. Further, learned

appellate Judge also considered the fact that in the affidavit filed

in support of I.A.No.1019 of 2009, the petitioner has stated that he

was suffering from fever. Whereas, in the affidavit filed in support

of petition in I.A.No.296 of 2011, he has stated that he went to

Karnataka State for doing garments business, which petition is filed

within one month from the date on which ex parte decree has been

passed. The revision petitioner not came up with true facts in his

affidavit, which amounts to failure to furnish sufficient cause for

his non-appearance, due to that the learned appellate Judge

rightly confirmed the orders passed by the learned trial Judge and

dismissed the Civil Miscellaneous Appeal filed by the petitioner.

This Court did not find any irregularity or illegality in the orders

passed by the learned appellate Judge warranting interference of

this Court under Section 115 of CPC.

11. In the result, the Civil Revision Petition is dismissed. No

order as to costs. Consequently miscellaneous petitions, if any

pending in this revision petition, shall stand closed.

___________________________ JUSTICE BANDARU SYAMSUNDER Date:23.08.2022 Rns

THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

C.R.P.No.286 of 2015

Date : 23.08.2022

Rns