Gulnar Gulabi vs Liaqath Hasan Khan
2022 Latest Caselaw 3632 Tel

     THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY

                  Appeal Suit No.394 OF 2016
JUDGMENT:

This appeal is filed by the defendants 2 to 4 under Section

96 read with Order-41 Rule-1 of the Civil Procedure Code, 1908

(for short 'CPC'), assailing the judgment and decree dated

09.02.2016 in OS No.177 of 2003 on the file of the learned

Senior Civil Judge, Sangareddy.

2. The plaintiff has filed the original suit for specific

performance of contract for sale, vide registered document No.

2767 of 2002, dated 19.10.2022 against the defendants 1 to 4.

Throughout the proceedings, the first defendant remained

absent. In fact, when notice was not served on the first

defendant, steps were taken for substitute service. As per para-

15 of the impugned judgment, despite paper publication issued,

the first defendant remained absent, thereafter, he was set

ex parte. The defendants 2 to 4 were impleaded in the original

suit at their own insistence. The trial Court has received the

written statement of second defendant, who is natural mother of

defendants 3 & 4, who are the children of first defendant

through second defendant.

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                                                       AS_394_2016

3. Thus, on receipt of written statement of second defendant,

the trial court has settled the issues and additional issue,

recorded the evidence of PW1 and exhibited Exs.A.1 to A.17 on

behalf of the plaintiff. Thereafter, DWs.1 to 4 were examined

and Exs.B.1 to B.7 were marked on behalf of the contesting

defendants. On careful appreciation of the oral and documentary

evidence available on record, after hearing both the parties, the

trial Court has answered all the issues in favour of the plaintiff

and the suit of the plaintiff was decreed directing the first

defendant to execute a registered sale deed in favour of the

plaintiff, pursuant to the registered agreement of sale dated

19.10.2002 on receiving the balance sale consideration of

Rs.2,40,000/- from the plaintiff within two months from the date

of judgment. The plaintiff was also directed to deposit the sale

consideration with interest @ 12% per annum from the date of

suit till the date of deposit within one month from the date of

judgment.

4. Be it stated that the contesting defendants 2 to 4, who

were impleaded as per the orders in IA No.1071 of 2004 dated

01.11.2004 and in IA No.217 of 2007, dated 15.06.2007, have

preferred this appeal assailing the judgment and decree dated 3 AVR,J AS_394_2016

09.02.2016. While things stood thus, Interlocutory Application

in IA No.6 of 2018 was filed before this Court by the parties

stating that the first defendant has filed an application in IA

No.1844 of 2018 before the trial Court under Order-9 Rule 13

CPC to set aside the ex parte judgement and decree dated

09.02.2016 in OS No.177 of 2003 passed against him and that

the trial Court may be permitted to dispose of the same on its

own merits based on the certified copies of documents, as the

entire record in OS No.177 of 2003 was transmitted to this

Court for consideration in this appeal.

5. This Court as per the orders dated 11.10.2018 in IA No.6

of 2018 has directed the trial Court to proceed with the matter

on the basis of certified copies, which were obtained from this

Court and to dispose of the application filed under Order-9 Rule-

13 of CPC on merits without, in any way, being influenced by

what is mentioned in the said order. Pursuant to the orders in IA

No.6 of 2018, as indicated above, the trial Court has allowed IA

No.1844 of 2018 as per the orders dated 07.12.2019 by setting

aside the ex parte judgment and decree dated 09.02.2016 in OS

No.177 of 2003 against the first defendant.

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6.   Today,    the   learned   counsel   for   the   appellants   and

respondents would seek to submit that since the ex parte

judgment and decree in OS No.177 of 2003 is set aside against

the first defendant, let the appeal be remanded to the trial Court

with a specific direction to dispose of the appeal within a

prescribed time limit.

7. On a careful perusal of the judgment dated 09.02.2016 in

OS No.177 of 2003 and also on perusal of the record of trial

Court, it is noticed that in spite of taking several steps including

issuing summons by way of substitute service, the first

defendant, who is none other than the former husband of

second defendant and the father of defendants 3 and 4, did not

turn up and only after the judgment and decree was passed in

OS No.177 of 2003, he has filed IA No.1844 of 2018 before the

trial Court, by that time this appeal in AS No.394 of 2016 was

pending before this Court. However, pursuant to the orders of

this Court in IA No.6 of 2018, dated 11.10.2018, the trial Court

has allowed the said application in IA No.1844 of 2018 and set

aside the judgment and decree in OS No.177 of 2003 against the

first defendant.

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                                                          AS_394_2016

8. This appeal is filed by the defendants 2 to 4, who are none

other than the former wife and children of first defendant. The

original suit is filed by the plaintiff for specific performance of

suit agreement of sale executed by the first defendant. In fact,

the suit was only filed against the first defendant, but when he

was set ex parte, the defendants 2 to 4 were impleaded on their

own as per the orders in IA No.1071 of 2004, dated 01.11.2004

in respect of second defendant and in IA No.217 of 2007, dated

15.06.2007 in respect of defendants 3 & 4, they filed the written

statement, adduced evidence as stated above, DWs.1 to 4 were

examined and Exs.B.1 to 7 were recorded on their behalf. After

full length trial, the suit of the plaintiff was decreed and the first

defendant was directed to execute the registered sale deed in

favour of the plaintiff in pursuance to the registered agreement

of sale dated 19.10.2002 as in Ex.A.9.

9. Order-9 Rule-13 of CPC deals with setting aside the

ex parte decree against the defendant. The law is well settled

that the plaintiff acquires valuable rights against the persons

not applying or not preferring an appeal or a decree passed

against the defendants who contested the suit. In such

circumstances, if a decree is indivisible such as a decree for 6 AVR,J AS_394_2016

partition or a mortgage decree or a decree against firm or when

the liabilities of the defendants are not separate, the decree has

to be set aside in to to and not in part.

10. Whereas, in the case on hand, the relief claimed is only

against the first defendant. The defendants 2 to 4 were

impleaded on their own as stated above, they are closely related

to the first defendant being his former wife and children.

However, in the given circumstances of the case, as the decree

was passed against the defendants 2 to 4 after full length trial,

in accordance with law in a suit for specific performance and no

relief is also claimed and granted against the defendants 2 to 4,

the suit need not be reopened against them in a casual manner

unless required after considering the additional material, if any

produced against them by the plaintiff and first defendant.

11. Therefore, considering the fact that the first defendant is

now appeared in a suit filed in the year 2003 and pursuant to

the directions of this Court in IA No.6 of 2018 dated 11.10.2018

as per the orders in IA No.1844 of 2018, the ex parte decree

against him in OS No.177 of 2003 is set aside, the trial Court is

hereby directed to receive the written statement of first

defendant if any filed, frame additional issues, if required, give 7 AVR,J AS_394_2016

an opportunity to the plaintiff to adduce additional evidence, if

any, thereafter to receive the evidence on behalf of first

defendant, if felt necessary to give one more opportunity to the

defendant Nos.2 to 4, to adduce additional evidence, if any, and

to conclude the trial and dispose of the matter at the earliest

possible under any circumstances not beyond six months from

the date of receipt of a copy of this order.

12. The trial Court shall also consider any other Interlocutory

Applications including implead petitions, if any filed and decide

the same on its own merits. In the event of allowing the implead

petitions also, the trial Court shall conclude the trial and

dispose of the matter within six months as indicated above. All

the parties to the suit, more particularly, the first defendant

shall cooperate with the trial Court for expeditious disposal as

indicated above.

13. With the above observations, without looking into the

merits of the appeal or otherwise of the claim of the appellants,

the judgment and decree dated 09.02.2016 in OS No.177 of

2003 is hereby set aside and the Appeal Suit is remitted back to

the trial Court for fresh disposal in accordance with law, as 8 AVR,J AS_394_2016

indicated above. However, in the circumstances of the case,

there shall be no order as to the costs.

As a sequel, miscellaneous applications, if any, pending in

this appeal suit, shall stand closed.

________________________________ A.VENKATESWHARA REDDY, J Date: 12-07-2022 Isn