THE HONOURABLE SRI JUSTICE R.RAGHUNANDAN RAO
CIVIL REVISION PETITION No.366 of 2021
ORDER:
The petitioner has filed proof of service vide memo bearing
USR No.38239 of 2021 on 05.08.2021. The consignment track
report shows that the notice has been served on the 1st
respondent on 05.07.2021.
2. The notice sent by the Court has been returned with
endorsement refused and returned to sender. In these
circumstances, there is service of notice on 1st respondent.
Cause title itself provides that 2nd respondent is not a necessary
party.
3. The 1st respondent herein had filed O.S.No.37 of 2012 in
the Court of the Principal Junior Civil Judge, Narsipatnam for
permanent injunction restraining the petitioner along with 2nd
respondent herein from interfering with the possession and
enjoyment of the 1st respondent over the plaint B schedule
property. The petitioner had filed written statement and the 1st
respondent had adduced the evidence as plaintiff by examining
Pws.1 to 3. Thereafter, the suit was disposed of on 04.06.2018
by way of an ex parte order on the ground that the petitioner
had not attended the Court. The petitioner had moved a petition
under Order 9 Rule 13 CPC seeking a direction from the Court to
set aside the ex parte order, dated 04.06.2018. This application
was dismissed by the trial Court on 09.02.2021 on the ground 2
that an application under Order 9 Rule 13 CPC is not permissible
as the petitioner should have taken recourse to Order 9 Rule
6(a) CPC in terms of Order 17 Rule 2 CPC only.
4. Heard Sri N.Sai Phanindra Kumar, representing
Sri S.V.S.S.Siva Ram, learned counsel for the petitioner.
5. Order 9 Rule 6 CPC stipulates that where the plaintiff
appears and the defendant does not appear when the suit is
called for hearing, the Court may pass an order ex parte if it is
proved that summons were duly served. The trial Court held
that a petition filed under Order 9 Rule 13 CPC subsequent to
the ex parte order passed under Order 17 Rule 2 CPC, is not
maintainable. However, the trial Court does not give any
reasons as to why the Order 9 Rule 13 CPC is not permissible.
6. Sri N.Sai Phanindra Kumar relies upon the judgments of
the Hon'ble Supreme Court in Prakash Chander Manchanda
and another vs. Janki Manchanda1 and G.Ratna Raj (Died)
by Legal Representatives vs. Sri Muthukumarasamy
Permanent Fund Limited and another2, wherein the Hon'ble
Supreme Court had held that an application under Order 9 Rule
13 CPC, against an ex parte order passed under Order 17 Rule 2
CPC, is maintainable.
1 (1986) 4 SCC 699 2 (2019) 11 SCC 301 3
7. In the light of the said judgments, the order of the trial
Court holding that such an application is not maintainable is
clearly incorrect.
8. In the circumstances, the order of the trial Court contained
in the docket order of return in I.A.Sr.No.-- of 2018 in O.S.No.37
of 2012, dated 09.02.2021, is set aside and remanded back to
the trial Court for an appropriate decision on the merits of the
application, after numbering the said application.
9. The Civil Revision Petition is, accordingly, allowed. There
shall be no order as to costs.
Consequently, miscellaneous petitions, if any, pending
shall stand closed.
_________________________ JUSTICE R.RAGHUNANDAN RAO
Date : 02.02.2022
SPP 4
THE HONOURABLE SRI JUSTICE R.RAGHUNANDAN RAO
CIVIL REVISION PETITION No.366 of 2021
Date : 02.02.2022
SPP
