Andhra Pradesh High Court - Amravati
P Rani vs B Prasad Reddy on 21 March, 2023
Bench: K Manmadha Rao
HON'BLE DR. JUSTICE K. MANMADHA RAO
CIVIL REVISION PETITION No.46 of 2021
ORDER :
This Civil Revision Petition has been filed against the
order and decree in I.A.No.13 of 2019 in OS No.152 of 2017
on the file of Additional Senior Civil Judge, Chittoor.
2. The petitioner herein is the defendant and the
respondents are the plaintiffs in the OS No.152 of 2017. I.A
No.13 of 2019 was filed under Section 5 of Limitation Act to
condone the delay of 132 days in filing the petition under
Order 9 Rule 13 of CPC.
3. Brief facts of the case are that the respondents
herein are the plaintiffs filed suit against the petitioner
herein for grant of permanent injunction. When the matter
was posted for their written statement the petitioner
suffered from ill health due to Jaundice and gyenic problem
and she took treatment at Tamilnadu and could not instruct
her counsel to prepare written statement. Her non-filing of
written statement was neither willful nor wanton and prays
to set aside the ex parte order.
4. Respondents filed counter and denied all the
allegations made in the petition. As the petitioner did not
file written statement prior to 7.11.2017 she was ex parte on
the day and thereafter time extended till 30.4.2018 for about
6 months. In spite of the same the petitioner did not come
forward with any application to contest the matter and now
came after lapse of considerable time and prayed to dismiss
the petition.
5. Heard Mr. Suresh Kumar Reddy Kalava, learned
counsel appearing for the petitioner and Mr. N. Ranga
Reddy, learned counsel appearing for the respondents.
6. On hearing, this court observed that under Section
5 of Limitation act, court is having ample power to set aside
the ex pate provided the other party is able to show
sufficient cause. In the present case, notice was served on
the petitioner/ defendant on 5.8.2017 and she engaged
advocate and filed vakalat on 22.9.2017. Thereafter, on
24.10.2017, 31.10.2017 as she did not file counter she was
set ex parte on 7.11.2017 and on 21.11.2017, PW.1 was
examined and Exs.A1 to A7 were marked. As the plaintiff is
not ready the matter was adjourned from time to time. On
20.3.2018 written arguments of plaintiff filed and matter
was posted to 30.4.2018 and on the same day the judgment
was delivered .
7. This Court further observed that when the
defendant engaged the Advocate and when the summons
were served on 5.8.2017 what all she has done over a period
of ten months was not explained more particularly when the
matter was posted for written statement and for evidence of
plaintiff. Even otherwise after passing of ex parte decree the
petitioner would have approached the court immediately
after the decree. But she slept over on the matter over a
period of four months and coming with this petition to
condone the delay under Order 9 Rule 13 CPC. Except
stating the fact that she is suffering from ill health there is
no proof of record to that extent. Even, after the petitioner
was set ex parte on 7.11.2017, nothing prevented her to
proceed with the case by engaging the Advocate. But
conveniently three years after decree was passed she came
up with this petition.
8. In view of the foregoing discussion, it is observed
that even otherwise after passing of ex parte decree the
petitioner have to approach this Court immediately but she
slept over for a period of four months. The petitioner
whatever the reasons contended in the petition are not at all
tenable. However, this Court is inclined to give one more
opportunity to contest the matter.
8. Accordingly, the Civil Revision Petition is allowed.
The order and decree in I.A.No.13 of 2019 in OS No.152 of
2017 on the file of Additional Senior Civil Judge, Chittoor, is
hereby set aside. Further, the petitioner is directed to pay
costs of Rs.3,000/- (Rupees Three thousand only) to the
credit of O.S.No.152 of 2017 on the file of the Court below.
Further, since the suit pertains to the year 2017, the trial
Court is directed to dispose of the same as expeditiously as
possible, preferably within a period of six (06) months from
the date of receipt of a copy of this order.
As a sequel, all the pending miscellaneous
applications shall stand closed.
______________________________
DR. K. MANMADHA RAO, J.
Date : -03-2023
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HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION No.46 of 2021
Date : .03.2023
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