Telangana High Court
Jamal Shridhar vs Jamal Satish on 5 December, 2022
Bench: Shameem Akther, Nagesh Bheemapaka
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
CIVIL MISCELLANEOUS APPEAL No.465 OF 2022
JUDGMENT: (Per Hon'ble Dr.SA,J)
This appeal, under Order XLIII Rule 1(c) C.P.C., is filed by
the appellants/plaintiffs aggrieved by the order and decree,
dated 12.09.2022, passed in I.A.No.383 of 2021 in O.S.No.4 of
2018 by the learned Principal District Judge, Rajanna Sircilla,
whereby, the subject I.A. filed by the appellants/plaintiffs, under
Order IX Rule 9 read with Section 151 C.P.C., seeking to set
aside the dismissal order, dated 24.11.2021, passed in the
subject Suit and to restore the subject Suit, was dismissed.
2. Heard the learned counsel for the appellants/plaintiffs,
learned counsel for respondent Nos.1 and 7/defendant Nos.1 and
7 and perused the record.
3. Notices sent to respondent Nos.2 to 6 returned with an
endorsement 'unclaimed'.
4. Learned counsel for the appellants/plaintiffs would submit
that the appellants/plaintiffs are claiming right over the suit
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C.M.A.No.465 of 2022
schedule property as coparceners. Both the parties are trying to
compromise the subject matter and in view of the same, chief
affidavits of the appellants/plaintiffs were not filed. The
appellants/plaintiffs are ready to file their chief affidavits and
expedite the trial of the subject Suit and ultimately, prayed to
set aside the impugned order.
5. On the other hand, learned counsel for the respondent
Nos.1 and 7 would contend that no justifiable reason has been
assigned in the affidavit filed in support of the subject I.A. to set
aside the dismissal order passed in the subject Suit. There were
no compromise talks, as alleged. The Court below had examined
the whole issue and passed a reasoned order. There are no
merits in the appeal and ultimately, prayed to dismiss the
appeal.
6. Admittedly, the subject Suit was filed for partition and
separate possession of the suit schedule property. The
contention put forth on behalf of the appellants/plaintiffs that
there were compromise talks in between the parties cannot be
ruled out. It is contended on behalf of the appellants/plaintiffs
that they are ready to lead evidence to substantiate their claim
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C.M.A.No.465 of 2022
and expedite the trial of the subject Suit. As seen from the
material placed on record, the appellants/plaintiffs did not
pursue the subject Suit diligently. There are laches on the part
of the appellants/plaintiffs in not filing the chief affidavits. They
sought time on several occasions. Such practice is not
appreciable. However, in view of the nature of the Suit, the
subject lis between the parties to the litigation need to be
determined on merits. Therefore, to meet the ends of justice, an
opportunity is required to be given to the appellants/plaintiffs to
complete their evidence and get adjudication of the subject Suit
on merits. In view of these circumstances, the impugned order
and decree are liable to be set aside, subject to payment of
costs.
7. Accordingly, the appeal is allowed and the impugned order
and decree, dated 12.09.2022, passed in I.A.No.383 of 2021 in
O.S.No.4 of 2018 by the learned Principal District Judge, Rajanna
Sircilla, are set aside, subject to condition of the
appellants/plaintiffs paying costs of Rs.25,000/- (Rupees twenty
five thousand only) to the respondent Nos.1 and 7/defendant
Nos.1 and 7 within a period of two (2) weeks from today.
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C.M.A.No.465 of 2022
Consequently, the subject I.A. stands allowed and the subject
Suit is restored to its file. The appellants/plaintiffs shall complete
their evidence within three (3) months from the date of receipt
of a copy of this order.
Miscellaneous Petitions, if any, pending in this appeal shall
stand closed. There shall be no order as to costs.
_______________________
Dr. SHAMEEM AKTHER, J
_______________________
NAGESH BHEEMAPAKA, J
Date: 05.12.2022
MD
