Sri. Madan Mohan vs Dr. Chamundeshwari
2022 Latest Caselaw 3046 Tel

       THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

         CIVIL REVISION PETITION No.1416 OF 2021

ORDER:-

1.     Heard both the counsel.

2.     This Civil Revision Petition is filed against the orders of

the trial Court dated 13.08.2021 in I.A.No.76 of 2020 in

O.S.No.2791 of 2019, on the file of the III Junior Civil Judge

Court, City Civil Court at Hyderabad. Petitioner herein filed an

application before the trial Court under Order IX Rule 7 read

with   151   C.P.C.   to   set-aside   the   ex-parte   order   dated

23.12.2019. He mainly contended that he found torn summons

outside the office premises and thus approached the counsel

and the counsel on verification, found that he was set ex-parte

on 23.12.2019. As such, he approached the Court and filed an

application in I.A.No.76 of 2020 on 18.02.2020 to set-aside the

said ex-parte order dated 23.12.2019.


3.     In the counter filed by the respondent, it was contended

that the application is filed only to prolong the litigation and he

was watching the proceedings. Respondent is a permanent

resident of Chennai and aged 90 years. She came to the Court

twice for giving evidence and after recording her evidence, the

matter is posted for judgment. At that stage, he came up with

this application and the same is liable to be dismissed.

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4. The trial Court, after considering the arguments on both

sides, dismissed the application in I.A.No.76 of 2020.

Aggrieved by the said order, this Civil Revision Petition is

preferred.

5. The learned counsel for the petitioner mainly contended

that he has shown good cause under order IX Rule 7 read with

Section 151 of CPC for his non-appearance before the Court and

he also stated that summons were not duly served upon him. As

per the report of the process server, they were affixed to the door

by mentioning as door locked. But the said process server and

counsel were not examined before the Court and the counsel

also stated that instead of issuing second notice, the Court

proceeded further and set him ex-parte without giving him a

reasonable opportunity. As such, requested the court to set-

aside the order of the trial Court.

6. The trial court also considered the judgments of the

Hon'ble Supreme Court and specifically mentioned that the

petitioner has not mentioned the date on which he found torn

summons during the period from 20.12.2019 till 18.02.2020;

whether the office was closed or not and observed that he has

not shown good cause and it was also observed that as the suit

is concluded and already posted for judgment, the said

PSS,J C.R.P.No.1416_2021

application under order IX Rule 7 read with Section 151 C.P.C.

has no application and accordingly, dismissed.

7. The counsel for the respondent stated that O.S.No.2791 of

2019 is filed for recovery of arrears of enhanced rent. In fact,

the petitioner herein preferred an Appeal vide RA.No.119 of

2019 against the orders of the Rent Controller and it was

decreed in their favour. As such, they filed another suit vide

O.S.No.2719 of 2019 for recovery of the amount, but he could

not appear. Inspite of granting sufficient opportunity, he was

set-ex-parte.

8. The Daily status report of the trial Court shows that

I.A.76 OF 2020 was filed on 18.02.2020, PW1 was examined on

05.02.2020, defendant was set ex-parte on 23.12.2019 and it is

posted for judgment to 05.03.2020. It was observed in the

docket order that I.A.No.76 of 2020 was filed on 18.02.2020,

but after giving several adjournments, the said I.A. was

dismissed on 13.08.2021. Against the said dismissal order, this

Civil Revision Petition is preferred.

9. The process server in his report stated that he went to the

address of the defendant on 10.12.2019, 13.12.2019 and

20.12.2019, but the defendant premises was door locked. As

such, he affixed the summons copy on the premises.

PSS,J C.R.P.No.1416_2021

10. Learned counsel for the respondent stated that though

the summons were affixed on 20.12.2019, the petitioner herein

stated that he approached the counsel after two months with

torn summons on 18.02.2020 and he has not stated any

reasons for closing of the office on the above three dates.

11. Both the counsel also relied upon several citations and

also argued regarding the relevant provisions of the Act.

12. Admittedly, the summons were affixed outside the office

premises but not served upon the petitioner. As such, he

approached the counsel after two months and then he filed

I.A.76 of 2020 to set-aside the ex-parte order. In the report of

the process server, the details of the premises with door number

are not mentioned and he was not examined by the trial Court.

Moreover, when the application is filed to set aside the ex-parte

order on 18.02.2020, it was dismissed on 13.08.2021.

13. The trial Court mainly observed that the plaintiff in the

suit is aged 90 years. She came from Chennai twice to the

Court but the defendant could not appear and came up with

this application only to prolong the litigation. Admittedly, the

petitioner is a tenant. But the cordial principle is that a suit is

to be disposed of on merits by duly giving an opportunity to

PSS,J C.R.P.No.1416_2021

both sides. In this case, there is no due service of summons to

the petitioner herein and even the trial Court kept it pending for

more than 1 ½ year. Therefore, I find that it is just and

reasonable to set-aside the order of the trial Court.

14. In the result, the Civil Revision Petition is allowed setting

aside the order of the trial Court dated 13.08.2021 in I.A.No.76

of 2020 in O.S.No.2791 of 2019, on the file of the III Junior Civil

Judge Court, City Civil Court at Hyderabad. Petitioner herein is

directed to file written statement and also to cooperate with the

disposal of the suit without asking for any adjournment as the

plaintiff in the suit is aged about 90 years. The trial Court is

directed to dispose of the matter within three months from the

date of receipt of copy of this order. There shall be no order as

to costs.

15. Miscellaneous petitions, if any pending, shall stand

closed.

__________________________ JUSTICE P.SREE SUDHA

Dt.24.06.2022 ysk

PSS,J C.R.P.No.1416_2021

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

CIVIL REVISION PETITION No.1416 OF 2021

Dt.24.06.2022 ysk