Maddireddy Janardhan vs Naseem Khatun
2022 Latest Caselaw 4122 Tel

             HON'BLE Smt. JUSTICE P.SREE SUDHA

         CIVIL REVISION PETITION No.772 of 2021

                               ORDER

1. This revision is directed against the order dated

08.02.2021 passed in I.A.No.496 of 2018 in O.S.No.97 of 2017

on the file of the learned Principal Senior Civil Judge,

Mancherial, whereby the application filed by the petitioner-

Defendant No.17 under Section 7 of the Limitation Act to

condone the delay of 121 days in filing the petition to set aside

the ex parte decree dated 09.04.2018 is dismissed.

2. The petitioner herein is Defendant No.17 in the suit.

Initially, the suit O.S.No.97 of 2017 is filed for injunction and

later it is converted into suit for declaration of title and

perpetual injunction. The plaintiffs would submit that their late

father is the absolute owner and possessor of the land

admeasuring Ac.5.25 guntas in Sy.No.76/D bearing Khasra

No.105 situated at Naspur Grampanchayath, Mancherial

Mandal, Adilabad District, and he purchased the same under

registered Sale Deed dated 24.08.1974 bearing Document

No.926 of 1974 from Syed Bin Omer. The name of the plaintiffs'

father was also mutated in the revenue records and filed

pahanies in support of their contention.

3. Defendant Nos.1 to 3, 6 to 13, 16, 18, 19 and 24 to 29

were set ex parte. The suit against Defendant Nos.20 to 23 and

30 was dismissed as withdrawn. It was reported that Defendant

No.5 died on 22.06.2012 and hence, the case against him

stands abated. Written statement was filed by Defendant No.4.

Defendant Nos.14 and 17 filed their written statement

separately. In their written statement they stated that they are

the owners and possessors of the land bearing Sy.No.76

measuring Ac.0.39 guntas each, total Ac.3.36 guntas in one

compact and they purchased the same from pattedar

Raghupathi Redddy and mutation was also effected in their

favour. Defendant No.15 adopted the written statement filed by

Defendant Nos.14 and 17. Another written statement was also

filed by Defendant No.23 and so also Defendant No.30. When

the suit is converted into declaration of title after the

amendment of the plaint, Defendant No.14 filed his additional

written statement adopted by Defendant Nos.4, 15 and 17.

4. P.Ws.1 to 3 were examined. Exs.A1 to A25 were marked

on behalf of the plaintiffs and they were not cross-examined by

the defendants and no evidence was adduced on behalf of the

defendants. The suit was decreed in favour of the plaintiffs.

5. I.A.No.496 of 2018 is filed by Defendant No.17. In the

affidavit filed along with the petition he would submit that he

engaged the counsel Sri V.Bhakta Vatchala to represent on his

behalf and he is in touch with his counsel and asking when his

presence is required to appear before the Court or to file written

statement, his counsel informed that in case of any requirement

he will call him and that the counsel neither called him nor filed

any written statement. On 15.07.2018 some of the plaintiffs

came over to his land and stated that they got decree and also

shown the Xerox copy of it dated 09.04.2018. Then he enquired

in the office and came to know that his counsel filed adoption

memo adopting the written statement filed by Defendant No.4

and even the written statement did not show about his

grievance or about his claim and he came to know about the ex

parte decree only on 15.07.2018 and there is a delay in filing

the application. He would also assert that he is a senior citizen

aged 60 years and his absence is only due to the facts stated

above and that the suit is filed by the plaintiffs in respect of the

vast immovable properties basing on forged documents in

collusion with other defendants and if the delay is not

condoned, he will be put to irreparable loss. Therefore,

requested the Court to condone the delay in filing the petition to

set aside the ex parte decree from 08.05.2018 to 29.08.2018.

6. In a counter filed by the plaintiffs, they stated that the

very application itself is not maintainable. The petitioner

engaged Sri V.Bhaktha Vatchala, Advocate, and he made his

appearance along with Defendant Nos.4, 14 and 15 and written

statement was also filed and they have also filed their verified

written statement and verified counter in injunction petition on

09.08.2012 through their counsel. Defendant No.14 filed

additional written statement on 27.03.2018 and adoption memo

was filed by Defendant Nos.4, 15 and the petitioner herein

adopting the written statement of Defendant No.14 on the same

day only after verifying the said written statement. The counsel

for the petitioner represented the case throughout from the

beginning to end and on 22.11.2013 and the learned counsel

also filed counter in I.A.No.603 of 2013 and as such the

argument of Defendant No.17 that he has not filed written

statement is incorrect. Moreover, the judgment and decree

passed by the Court dated 09.04.2018 is not ex parte judgment

and as such the application filed under Order 9 Rule 13 CPC is

not maintainable. The number of days delay is not explained

properly and the Advocate cannot be blamed and it is the duty

of the party to know the day to day proceedings and if at all he

has any grievance, he can file complaint against the counsel,

but not this petition before the Court and that they failed to

make Defendant No.26 as party to the petition. If at all the

present defendant is having any grievance, he has to file an

appeal, but not this vexatious petition, and thus requested the

Court to dismiss the same.

7. The trial Court after considering the arguments of both

the counsel and the proposition of law laid down therein

dismissed the application by observing that the decree passed is

not an ex parte decree. The trial Court further observed that

having engaged an Advocate, it is the duty of the party to

approach his counsel and pursue the matter and his argument

that the counsel did not inform him is not tenable. The

petitioner herein signed on the written statement on 09.08.2012

and he has not even terminated the vakalat of his counsel and

as such the trial Court observed that the plea of the petitioner

cannot be accepted.

8. Heard the learned counsel appearing for the petitioner

and the learned counsel appearing for respondents.

9. Learned counsel for the petitioner would contend that the

decree was passed basing on the plaintiffs' evidence and without

appearance of the defendants and thus it is an ex parte decree,

and therefore, the petitioner herein rightly filed an application

under Order 9 Rule 13 CPC. He would also assert that initially

the suit was filed before the Junior Civil Judge seeking

injunction and later the plaint was amended and the relief of

declaration of title was sought for. Learned counsel would also

contend that the decree was passed basing on the 'no objection'

given by one of the defendants and the same was extended to

the petitioner herein without any knowledge or instructions and

the petitioner herein has not given any consent to his Advocate

and it is a settled law of proposition that waiver of property right

shall require a written consent and also record presence of such

party by the Courts and as such the decree was passed without

following the procedure envisaged under Order 8 Rule 9 CPC

and a fair opportunity is to be given to him. Learned counsel

also assert that when the suit filed for injunction is converted

into a comprehensive suit for declaration of title, refusal to give

an opportunity to the party is unsustainable. Requirement of

filing of additional written statement is due to the amended

plaint as change of jurisdiction and new pleadings are set in the

issue and as such, the memo for adoption is illegal. Learned

counsel would also submit that Order 8 Rule 9 deals with

subsequent pleadings and it does not impose any limitation on

the power of the Court to allow the parties to file subsequent

pleadings, but the trial Court erroneously observed that original

written statement dated 09.08.2012 was signed and it was not

disputed by the petitioner herein and vaklat is not terminated

and accordingly dismissed the delay condonation petition. He

would also argue that the order of the trial Court is illegal and it

committed serious irregularity in accepting the adoption memo

dated 27.03.2019 to adopt the additional written statement of

Defendant No.14 for the petitioner and Defendant Nos.4, 15 and

17 stating that they have been excluded by the plaintiffs from

the suit land by changing the boundaries of the suit and thus,

they have no objection, but this amount to fraud committed on

the Court, which is impermissible and therefore, requested the

Court to set aside the order of the trial Court.

10. Learned counsel appearing for the petitioner also

furnished chronology of events and requested the Court for de

novo enquiry as the suit is initially filed for injunction and later

converted into a suit for declaration of title. On 09.08.2012 the

petitioner filed his written statement along with others before

the Junior Civil Judge's Court but later the plaint was returned

to be presented before the Principal Senior Civil Judge,

Mancherial. The plaintiffs filed I.A.No.167 of 2018 for

amendment of the plaint and also filed the fresh amended copy

of the plaint on 06.03.2018. The learned Principal Senior Civil

Judge continued the proceedings from the stage where the

plaint was returned. The plaintiffs also filed I.A.No.211 of 2018

for appointment of an Advocate-Commissioner and it was

ordered on 12.03.2018 and a report dated 27.03.2018 was filed.

Additional written statement of Defendant No.14 was also filed

on the same day and the adoption memo for Defendant Nos.4,

15 and 17 was filed by the same counsel.

11. In UDAY SHANKAR TRIYAR V/s. RAM KALEWAR

PRASAD SINGH1, the Hon'ble Apex Court held as follows:

'The object of courts is to decide the rights of parties and not to punish them for mistakes which they make in the conduct of their cases by deciding otherwise than in accordance with their rights...Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy.'

12. Learned counsel for the petitioner also relied upon a case

law in MOHD. MUSTAFA SHAREEF V/s. MASOOM ALI

(2006) 1 SCC 75

MOHALLA COMMITTEE, WARANGAL2, this Court held as

follows:

'When a plaint is returned for presentation to proper Court under Order 7 Rule 10 CPC, the plaint alone is returned and as such, the Court to which the plaint is later on presented will have to commence the proceedings on such plaint afresh. The plaint so represented is not a continuation of the plaint presented in the former Court, whether for the purpose of limitation or for Court fees and in all respects, the plaint so presented in the proper Court is a fresh presentation of plaint requiring all proceedings thereafter to be taken up de novo. On the contrary, in the case of transfer of suits the entire suit up to the stage at which it was tried by the former Court is transferred to the transferee Court and it is left to the discretion of the transferee Court, as provided under Section 24(2) CPC either to re-try the suit or proceeded from the point at which it was transferred or withdrawn. It may be that in a particular case, while ordering transfer, a specific direction to continue from a particular stage may be given.'

13. In the additional written statement filed by Defendant

No.14 he stated as follows:

'It is submitted that the land of defendant no.4, 14, 15 and 17 are excluded by the plaintiffs from the suit land by changing the boundaries of the suit land and extent, and hence these defendants got no right over the suit land within the given schedule boundaries, and they have no objection over the suit land of the plaintiffs.'

14. Adoption memo is filed on behalf of Defendant Nos.4, 15

and 17 adopting the additional written statement of Defendant

No.4. Learned counsel for the petitioner submitted that the said

adoption memo does not bear the signature of the party but it is

signed by his counsel. Even in the judgment it was observed

2011 (4) ALD 614

that the written statement filed by Defendant Nos.14 and 17

they are the owners and possessors of the land bearing

Sy.No.76 measuring Ac.0.39 guntas each total Ac.3.36 guntas

in one compact. In fact, their counsel Sri V.Bhakta Vatchala

filed vakalat for Defendant Nos.4, 14, 15 and 17 and it clearly

shows that the petitioner is having land in an extent of Ac.0.39

guntas in Sy.No.76 in his favour. In fact, the plaintiffs filed suit

against 31 defendants and it clearly shows that the extent of the

land in favour of the petitioner herein is meagre. The petitioner

herein engaged counsel and he filed written statement and also

filed additional written statement on behalf of Defendant No.4

and filed adoption memo in favour of others including the

petitioner herein. He also filed counter in the application filed

for appointment of Advocate-Commissioner as well as in the

temporary injunction application and thus, the counsel was on

record all through and represented the case properly on behalf

of the petitioner herein. The petitioner herein simply stated that

when he contacted his counsel, he stated that he will inform

him whenever it is required, but the advocate never contacted

and called him to Court for filing written statement and it was

filed without his knowledge. When once the petitioner engaged

his counsel, it is for the counsel to represent the matter

properly by duly filing the written statement and contest the

matter throughout. The petitioner herein failed to meet his

counsel during the pendency of the proceedings and kept quiet

throughout the pendency of the suit and only after the disposal

of the suit came up with the present application by stating that

the adoption memo is not filed at his instance.

15. Considering the extent of the land in his favour and his

negligence during the pendency of the proceedings and other

relevant factors as discussed above, this Court finds that there

is no infirmity in the order of the trial Court and it needs no

interference.

16. In the result, the Civil Revision Petition is dismissed

confirming the order under challenge.

17. Miscellaneous Petitions, if any, pending in this revision

shall also dismissed in the light of this final order.

____________________ P.SREE SUDHA, J.

11th AUGUST, 2022.

PGS