Shaik Shafi vs Shaik Abdul Rasool
2022 Latest Caselaw 8981 AP

 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

     CIVIL MISCELLANEOUS APPEAL No. 271 OF 2022

JUDGMENT:

The appellant herein is the 2nd defendant in the suit. The

respondent/Plaintiff filed the suit for specific performance. The

Suit was exparte decreed against the appellant herein vide

Order dated 27.10.2017. IA No.267 of 2017 in OS 107 of 2012

on the file of the Judge, Family Court-cum-VI Additional District

& Sessions Court was filed to set aside the exparte decree. The

suit was posted for cross examination by PW1 on 25.10.2017

but the Advocate Clerk of the Appellant herein noted the date

wrongly, hence, he could not meet his counsel on the date of

adjournment, as such, his counsel did not cross examine PW1.

Hence, the Court made exparte decree. The respondent herein

who is plaintiff filed counter stating that the petition is an un-

matured one and the petition has been simultaneously run

along with the said suit which was decreed on 27.10.2017 i.e.

more than 4 1/2 years.

2. Now the matter is came for filing counter by the

respondent i.e. one decade which is peak and abnormal to

justify the matter on behalf of the respondent/plaintiff. It was

asserted that now, the counter filed for the above said I.A. that

the defendants 1 and 2 above in collusion with each other, the

petitioner has not shown interest on this case, except filing this

petition. Since nearly 5 years, the plaintiff is unable to enjoy

the fruits of the decree and prayed to dismiss the application

filed to set aside the exparte decree.

3. Due to wrong noting of the adjournment date the

appellant/petitioner is not able to attend the court, is the

reason assigned in the affidavit filed in support of the petition.

The court below was dissatisfied with the reason mentioned in

the affidavit and dismissed the application observing that

exparte decree can be set aside only when summons were not

duly served or for any sufficient cause from appearing to the

suit or called on for hearing under Order 9 Rule 13 CPC. While

dismissing the petition the court observed that the case in hand

does not fall to satisfy for setting aside the exparte decree

passed on 27.10.2017 and also stated that it does not fall on the

grounds that as contemplated under Order 9 Rule 13 and the

Court also held that, petitioner cannot be permitted to take

advantage of his own wrong and it would lead to un ending

litigation and the petitioner has failed to discharge his duty. It

is further observed that the defendant is not prosecuting the

case and deliberately allowed the court to pass a decree and

approached the court with unclean hands. The Court further

observed that the dilatory tactics should not be encouraged and

eventually dismissed the application filed to set aside the

exparte decree vide Order dated 04.07.2022 in I.A. No.267 of

2017 in O.S. No.107 of 2012.

4. Aggrieved by the said order, the present application came

to be filed by the Defendant No.2 and he reiterated the facts

stated in the affidavit to set aside the exparte decree and denied

observations made by the court below and if the opportunity to

contest the matter is not given that it will cause irreparable loss

and injury, as the suit is for specific performance and would

cause injustice to the appellant herein therefore prayed to allow

the application by setting aside the order passed in I.A. No.267

of 2017.

5. The Hon'ble Supreme Court in series of decisions held

that while deciding an application filed under Order 9 Rule 13

or under Section 5 of Limitation Act, the Court should be,

liberal approach to an application and also held that merits of

the case should also be looked into, while deciding the

application for setting aside the exparte decree, the court should

have kept in mind the judgment impugned, the extent of the

property involved and the stake of the parties. Merely some

lapses on the part of the litigant concerned, that alone is not

enough to turn down his plea and to shut the door against him.

If the explanation does not smack of malafides or it is not put-

forth as part of dilatory strategy, the court must show utmost

consideration to the suitor. And also held that there is no such

presumption that approaching court with the petition to set

aside the exparte decree is always deliberate and the court also

held that 'sufficient cause' should receive a liberal construction

so as to advance substantial justice. The primary function of a

court is to adjudicate the dispute between the parties, to

advance substantial justice. The object of providing a legal

remedy is to repair the damage caused by reason of legal injury.

The application under Order IX Rule 13 CPC itself had all the

ingredients of the application for condonation of delay in making

that application. Procedure is after all handmade of justice.

6. The reasons assigned for dismissal is recalcitrant to the

observation of the Hon'ble Apex Court in several decisions;

keeping in view of the same, this court is inclined to set aside

the dismissal Order in I.A.No.267 of 2017 in O.S. No.107 of

2012 on the file of the Judge Family Court-cum-VI Additional

District and Sessions Judge, Nellore. Where the stake holders

are contending for the land property it is expedient in the

interest of justice to set aside the impugned Order passed by the

trial Court. However, the reasons stated in the affidavit filed in

support of the petition to set aside the exparte decree is not so

sound. Mere some lapses on the part of the litigant cannot be a

ground to dismiss the I.A. as the issue involved in the suit is

relating to landed property. In view of the same, this Court is

inclined to set aside the exparte decree. However, for the

negligent act of the appellant a cost of Rs.3,000/- is hereby

imposed on him, which shall be paid to the Plaintiff. The Court

below shall fix time for payment of the costs, on such payment

the Court is directed to proceed with suit.

7. In view of the above, this Civil Miscellaneous Appeal is

allowed and the order dated 04.07.2022 in I.A. No.267 of 2017

in O.S. No.107 of 2012 on the file of the Family Court-cum-VI

Additional District and Sessions Judge, is hereby set aside and

the said I.A. is allowed. No orders as to cost.

Miscellaneous applications pending, if any, stands closed.

_______________________________________ JUSTICE TARLADA RAJASEKHAR RAO

Date: 24-11-2022 Harin

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

C.M.A. No. 271 of 2022 Date: 24-11-2022

Harin