Telangana High Court
Abdul Mannan Shah Ali vs M.A.Hannan Aksari on 28 June, 2022
Bench: P.Sree Sudha
THE HON'BLE SMT. JUSTICE P.SREE SUDHA
A.S. No.3 of 2022
ORDER:
This Appeal suit is filed against the judgement of the trial
court in OS No.93/2014 dated 19.4.2021. The appellate counsel
mainly contended that plaintiff filed suit for declaration of title
recovery of possession rectification of revenue record in respect
of land in Sy.No.262 admeasuring Ac.7.14 guntas situated at
Zaheerabad Town and Mandal, Sangareddy District.
2. The appellant is the defendant in the suit. He filed
written statement but did not contest the suit and did not cross
examine PWs 1 and 2 and he did not adduce any evidence on
his behalf. He is not aware of the evidence adduced by the
plaintiffs, though it was commenced on 15.09.2008 in the suit.
As his counsel did not inform him as such, there was no
occasion for him to pursue the matter and thus the court
recorded it as no representation on defendant side and the cross
examination of PW1 was recorded as nil and closed. The chief
affidavit of PW2 was also filed along with petition to receive
certain documents on 2.7.2019, as he is not aware of the same
did not participate in the proceedings and the matter was
AS.No.3 of 2022
adjourned from time to time due to pandemic situation.
Arguments of the plaintiff were heard on 10.03.2021. As there
was no representation for the defendant, the arguments of the
defendant were treated as heard and judgment was pronounced
on 19.04.2021. The trial court instead of disposing of the matter
as exparte as envisaged under Order XVII Rule 2 of CPC
adjudicated the suit on merits. He came to know about the
disposal of the suit only when he received notice in EP
107/2021 in the third week of September, 2021. Then he
ascertained about the disposal of the suit and applied for the
certified copy on 6.12.2021, it was furnished on 7.12.2021 and
preferred an appeal. He stated in view of the default of the
defendant under rule 2 and rule 3 of Order XVII, only course left
upon for the trial court was to proceed under Order XVII Rule 2
of CPC as envisaged under Order 9 of CPC. He further stated
that his father was in possession of the suit schedule property
since long time, as such merely considering the oral evidence of
PW's 1 and 2, suit cannot be decreed in favour of the plaintiffs.
3. The trial court failed to see Ex.A1 which reflects the name
of his father and Ex.A4 in which his name was reflected which
are conclusive proof of title and exclusive possession of the
AS.No.3 of 2022
defendant over the suit schedule property. His father applied for
mutation of the names basing on the affidavit on 25.3.1999 and
he was in possession of the suit schedule land from past 3
decades and thus perfected title over the suit schedule land.
The suit filed by the plaintiffs for declaration of title and
recovery of possession is barred by limitation. In view of the
admitted possession of defendant and his father from past 30
years, the judgment of the trial court is not sustainable on
account of violation of mandatory proceedings contemplated
under Order XVII Rule 3 and also failed to exercise the
jurisdiction in judicious manner and thus requested to set aside
the order.
4. The counsel for the petitioner filed extract of the docket
proceedings of the suit and contended that he was set exparte
in the suit, but the trial court instead of passing the exparte
judgment, passed the judgment on merits by considering his
written statement. He further stated that the presiding officer
was transferred as per the docket orders dated 8.12.2020 and
24.3.2021, as such the passing of the judgment without hearing
the matter again is not tenable. The counsel of the respondent
stated that suit was tried by the in-charge officer. In fact the
AS.No.3 of 2022
suit was filed before the V Additional District Judge Medak at
Sangareddy, but it was tried by the in-charge court i.e. Family
court cum VII Additional District Judge who is in-charge of V
Additional District Judge. I am intended to extract some of the
docket orders for the proper appreciation of the facts.
Date Docket order
01/08/2014 The advocate of the defendant filed vakalat
21/10/2014 Written statement is filed.
05/09/2018 Chief affidavit of PW1 is filed. Ex.A1 to A17 are
marked. For cross examination at request of
defendant counsel, list on 12.09.2018.
12/09/2018 Defendant counsel absent the cross examination
was recorded as nil and closed.
01/11/2018 IA No.987/2018 is allowed. Additional Chief
affidavit of PW1 is filed for further cross. List on
27.11.2018.
05/12/2018 PW1 present. Defendant counsel absent. Hence
cross examination of PW1 was recorded as nil
and closed.
02/07/2019 Affidavit of PW2 filed along with receive
documents petition.
AS.No.3 of 2022
03/09/2019 IA No.556/2019 to receive the documents is
allowed. PW2 present. Defendant absent till
3.50PM. In IA notice was given to the counsel of
the respondent he was set exparte. Petition was
allowed. Documents were received subject to
proof of relevancy.
13/09/2019 PW2 present. Ex.A18 and 19 are marked.
Defendant called absent. An advocate
commissioner was appointed to cross examine
PW2.
27/09/2019 Commissioner filed report stating that defendant
counsel was not responding in spite of notice
and hence cross examination of PW2 was treated
as nil.
01/10/2019 Plaintiff evidence was closed and posted for
defendant evidence.
22/10/2019 Evidence of defendant was closed.
05/11/2019 Heard the arguments of plaintiff as there is no
representation for defendant his arguments were
treated as heard and reserved for judgment.
19/04/2021 Judgment was pronounced.
AS.No.3 of 2022
5. Plaintiff filed suit for declaration of title, recovery of
possession and also for rectification of entries in the revenue
records from 1979 onwards. Plaintiff stated that he is absolute
owner and pattadar of land in survey no.262 admeasuring
Ac.7.14 guntas. Plaintiff's father migrated to Hyderabad and
started business, as such he instructed his brother to look after
the suit land as a care taker with a condition to give half share
of crops after deducting the expenses. Accordingly during his
life time he gave the amount. Father of the plaintiff died in the
year 1993, leaving behind the plaintiffs as legal heirs. After the
death of defendant, his son was also paying half share, later
without his knowledge mutated his name in the ROR and they
came to know about the same through neighbours of the land
and filed suit.
6. In written statement it was admitted that father of
plaintiff and father of the defendants are real brothers and
defendant further stated that the suit schedule property was fell
to the share of his father, but it was in the name of the father of
the plaintiff, as such he gave an affidavit on 25.03.1979, in
which he admitted that the defendants father was in possession
of the land from past 25 to 30 years prior to the partition and as
AS.No.3 of 2022
such, he has no right over the suit and requested to transfer the
same in the name of his brother and he also gave an application
on 20.07.1980, to the Tahsildar to transfer the land.
Accordingly it was mutated in the name of their father. But the
children of the plaintiff filed a suit falsely against him. Plaintiff
examined himself as PW1 and also examined PW2 and marked
Ex.A1 to A19 and he also filed additional affidavit.
7. As per the docket proceedings of the defendant, the
defendants were present before the court on 05.09.2018 and
also received notice, but could not appear on 03.09.2019. The
counsel herein mainly contended that he has no idea about the
adducing of the evidence by the plaintiffs, as his counsel did not
inform, he could not represent in the proceedings of the trial
court. When once he engaged the counsel and filed written
statement, it is for the petitioner herein to enquire about the
proceedings of the case and he cannot simply say that his
counsel did not inform to him. He did not participate in the
proceedings of the suit throughout, though the opportunity was
given to him at every point of time, he was never set exparte in
the suit. Even then, he never participated in any of the
proceedings and kept quiet till the disposal of the suit, he
AS.No.3 of 2022
simply contended that his counsel has not informed about the
proceedings, as such he could not participate and the said
reasoning is not tenable.
8. The petitioner herein mainly relied upon Order XVII Rule
2 which reads as follows:
2. Procedure if parties fail to appear on day fixed.--
Where, on any day to which the hearing of the suit
is adjourned, the parties or any of them fail to
appear, the Court may proceed to dispose of the
suit in one of the modes directed in that behalf by
Order IX or make such other order as it thinks fit.
[Explanation--Where the evidence or a substantial
portion of the evidence of any party has already
been recorded and such party fails to appear on
any day to which the hearing of the suit is
adjourned, the Court may, in its discretion proceed
with the case as if such party were present]
In Order XVII Rule 2 it was stated when one of the party
failed to appear before the court, the court may proceed to
dispose of the suit in one of the modes directed in Order IX or
make such other order as it thinks fit.
Order IX Rule 6-A reads as follows: If it is proved that the
summons was duly served, the Court may make an order that
the suit be heard exparte;
AS.No.3 of 2022
9. In this case not only summons were served, but the
defendant also engaged a counsel and filed written statement
and later he has not cross examined the witnesses and not
adduced any evidence. The discretion was given to the court
under Order IX Rule 6-A and also Order XVII Rule 2. The
explanations by way of amendment in Andhra Pradesh are also
not applicable to the petitioner herein. The suit was rightly
disposed of by the trial court, as per Order XVII Rule 2 because,
it was specifically mentioned in Order XVII Rule 2, that the
court may proceed to dispose of the suit and it is not mentioned
as shall proceed to dispose of and moreover, it was also
mentioned that the court can pass orders in any of the modes
directed in Order IX or make any such other order. As such, the
court is having ample power to dispose of the matter on merits
and the arguments of the defendant counsel that the trial court
failed to pass exparte order is unsustainable. Moreover, when
he wilfully avoided attending the court and did not participate in
the proceedings of the court, he cannot come up at a later stage
and take advantage of his own mistake and contend that the
judgment of the trial court is not tenable.
AS.No.3 of 2022
10. As the written statement was filed before the trial court
the contents of the written statement were also considered while
disposing of the suit as the suit is filed for declaration of title.
Though defendant relied upon the affidavit and an application
filed by the father of plaintiff, he has not filed the said
documents along with the written statement. As such, the
appreciation of facts by the trial court cannot be found fault
with.
11. I do not find any reason either to set aside the order of the
trial court, or to remand the matter. This appeal filed by the
appellant is mischievous and is devoid of merits and thus, it is
dismissed with costs.
12. Accordingly Appeal suit is dismissed with costs.
Miscellaneous applications, if any pending, shall also stands
dismissed.
___________________________
JUSTICE P.SREE SUDHA
Date: 28.06.2022.
BV
