Gottupalli Rama Rao vs Talachutla Veeranjaneyulu
2023 Latest Caselaw 2074 AP

      HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

         CIVIL REVISION PETITION No.634 of 2022

Between:

Gottupalli Rama Rao, S/o late Venkaiah, Aged 75 years, R/o
D.No.21/16-1B, Opp: Pappula Mill, Madhura Nagar,
Vijayawada, Krishna District.

                         ... Petitioners/Respondent/Plaintiff

And


Talachutla Veeranjaneyulu, S/o Narayana, Aged 46 years,
R/o D.No.2-104, C/o Kolasani Srinivasa Rao, S/o Pothuraju,
Backside of Sivalayam, Vuyyuru Village & Mandal, Krishna
District.
                           ... Respondent/Petitioner/D-1


Sangala Mahesh Kumar, S/o Saibabu, Aged 41 years, R/o
D.No.1-58, Mantada Village, Pamidimukkala Mandal, Krishna
District.
                            ... Respondent/R-2/D-2


Counsel for the petitioner         : Sri M.Radha Krishna

Counsel for respondent No.1        : Sri Narasimyha Rao
                                     Gudiseva


                             ORDER:

Plaintiff in suit O.S.No.77 of 2013 filed the above revision

against the order dated 04.01.2022 in I.A.No.594 of 2016 in

O.S.No.77 of 2013 on the file of the XV Additional District

Judge, Krishna District, Nuzvid.

SRS, J CRP No.634 of 2022, dt: 19.04.2023

2. Suit O.S.No.77 of 2013 was filed by plaintiff seeking

specific performance of agreement of sale dated 22.09.2010.

The schedule property is an extent of Ac.0-22 cents in

R.S.No.756/1 of Nuzvid Town and Mandal, Krishna District.

Since the defendant failed to appear after the receipt of

summons by registered post, she was set ex parte and ex parte

decree was passed on 03.09.2015.

3. Defendant filed I.A.No.594 of 2016 under Section 5 of

Limitation Act, 1963 to condone the delay of 290 days in filing

a petition to set aside the ex parte decree.

4. In the affidavit filed in support of the petition, it was

contended, inter alia, that he never received notice or summons

from the Court and that he has no knowledge about filing of the

suit by the plaintiff and hence, he could not appear before the

Court. Since he failed to appear in the suit, an ex parte decree

was passed. Thereafter, he came to know about passing of ex

parte decree through counsel and immediately he filed

application. The address particulars shown in the plaint are not

correct. He has been residing at different Door number in

Vuyyuru Village since ten years and plaintiff is aware of those SRS, J CRP No.634 of 2022, dt: 19.04.2023

particulars. However, plaintiff did not give full particulars of his

address and eventually prayed to condone the delay of 290

days in filing a petition to set aside the ex parte decree.

5. Plaintiff filed counter and opposed the application. It was

specifically contended that even prior to filing of the suit,

plaintiff got issued a registered legal notice to Kanumuru and

also to Vuyyuru villages. The notice addressed to the petitioner

at Vuyyuru was returned with postal endorsement that

"petitioner refused to receive the notice". Suit summons sent to

the petitioner at Vuyyuru was returned with an endorsement

that "the petitioner refused to receive the summons". Hence, he

was set ex parte on 31.03.2015 and eventually the suit was

decreed. It was further contended that the delay was not

properly explained and hence, prayed to dismiss the revision.

6. Trial Court vide order dated 04.01.2022 allowed the

application. Aggrieved by the same, above revision is filed.

7. Heard learned counsel for the revision petitioner and

learned counsel for Respondent No.1.

8. Learned counsel for the revision petitioner would contend

that defendant No.1 failed to explain proper reasons in filing SRS, J CRP No.634 of 2022, dt: 19.04.2023

application to condone the delay of 290 days. He would also

contend that the registered post sent to Defendant No.1 was

returned with an endorsement "refused". He placed reliance

upon a judgment reported in Vishwabandhu vs. Sri Krishna

and Anr.1.

9. On the other hand, learned counsel for the respondent

No.1 would contend that defendant No.1 explained the reasons

for his absence in the affidavit. He would also submit that the

address particulars of defendant No.1 were not properly shown

in the plaint though plaintiff is aware of the address particulars

of defendant No.1. On coming to know about the decree,

immediately defendant No.1 filed application to set aside the ex

parte decree with delay of 290 days. Trial Court on careful

consideration, allowed the application.

10. The point for consideration is:

Whether respondent No.1/defendant No.1 explained the reasons to condone the delay of 290 days in filing a petition to set aside the ex parte decree dated 03.09.2015?

2020 SCC Online 1263 SRS, J CRP No.634 of 2022, dt: 19.04.2023

11. Suit O.S.No.77 of 2013 was filed seeking specific

performance of agreement of sale. The address of defendant

No.1, in the plaint, was shown as resident of Vuyyuru Village

and Mandal, Krishna District. Door number and other relevant

particulars were not mentioned in the address shown in the

plaint.

12. Trail Court in Para No.10 of the order observed the

summons issued through Court and registered post was

returned for several times for want of correct address. Further

observed docket order dated 31.03.2015 would indicate that

defendant No.1 refused to receive the summons sent through

Court and hence defendant No.1 set ex parte.

13. The affidavit filed in support of the petition, it was

contended that defendant No.1 came to know about the decree

through his Advocate. But, it was not specifically stated when

he came to know about passing of ex parte decree. Petitioner

should plead and prove about his knowledge of passing of ex

parte decree.

14. Court below recorded finding that defendant No.1 failed

to explain specific dates when he came to know about passing SRS, J CRP No.634 of 2022, dt: 19.04.2023

of ex parte decree, however, condoned the delay of 290 days in

the facts and circumstances of the case. While exercising the

jurisdiction, the Court below ought to have compensated

opposite party by imposing costs.

15. In Vishwabandhu's case (referred supra), the Hon'ble

Apex Court held that postal endorsement of refusal amounts to

proper and deemed service. Case on hand, as seen from the

record, notice was served on defendant. Cause of justice

requires adjudication on merits so far as possible. Since the

trial Court exercised its jurisdiction and condoned delay, ought

to have compensated opposite party. Hence, this Court deems it

appropriate to compensate the plaintiff since the application

was filed with delay of 290 days.

16. In view of the above, the order of the trial Court is

modified. Defendant No.1 shall pay costs of Rs.5,000/- (Rupees

five thousand only) to the plaintiff within a period of three

weeks from the date of receipt of a copy of this order and file

costs memo to that effect before the trial Court. If the plaintiff

declines to receive the costs as ordered by this Court,

defendant No.1 shall deposit the said costs to the credit of the

District Legal Services Authority and file receipt to that effect SRS, J CRP No.634 of 2022, dt: 19.04.2023

before the trial Court. Since this Court imposed costs as a

condition precedent to order I.A., if defendant No.1 fails to

comply with the condition imposed by this Court, the order

dated 04.01.2022 in I.A.No.594 of 2016 passed by the trial

Court shall stand annulled. Since the suit is of the year 2013,

trial Court shall dispose of the suit as expeditiously as possible

in view of the Circular issued by High Court to dispose of pre

2018 suits.

17. With the above direction, the Civil Revision Petition is

disposed of. No order as to costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J

Date : 19.04.2023

Note:

Furnish copy by 25.04.2023 KA SRS, J CRP No.634 of 2022, dt: 19.04.2023

HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

CIVIL REVISION PETITION No.634 of 2022

Date : 19.04.2023

Note:

Furnish copy by 25.04.2023 KA