Hansraj Singh And Other vs Smt. P. Shoba Devi
2022 Latest Caselaw 3102 Tel

          THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                        C.R.P.NO.910 OF 2022

                               ORDER

The 1st respondent herein is the plaintiff, and she filed suit

O.S.No.105 of 2006 on the file of Senior Civil Judge, Vikarabad, Ranga

Reddy District, against the petitioners herein and other respondents

for declaration of title and for partition of the suit schedule property.

2. As the defendants 4 and 5 failed to file written statement,

they were set ex parte on 18.01.2006, and seeking to set aside the

same, they filed the present I.A.No.670 of 2018 under Order 9, Rule 7

of CPC. They also sought to receive the memo, where-under they

prayed to adopt the written statement filed by 8th defendant in the

suit. Their claim is that they could not appear as they were not served

with summons.

3. Vide the impugned order dated 06.03.2019, the court below

found that vakalat was filed on behalf of the petitioners / defendants

4 and 5, and hence question of non-service of summons does not

arise, and also as there was unexplained delay of 12 years, dismissed

the application. Assailing the same, the present revision is filed.

4. Learned counsel appearing for the petitioners / defendants 4

and 5 submits that the present suit is for partition, where these

defendants are claiming right in the suit schedule property, and hence

without giving them opportunity, effective adjudication cannot be

made. He submits that petitioners have only filed memo adopting the

written statement of the 8th respondent and hence if opportunity is

given to them, no prejudice would be caused to other parties. He

further submits that this court may take a liberal approach and set

aside the ex parte order dated 18.01.2006, and the petitioners may be

permitted to file memo adopting the written statement filed by the 8th

respondent, by imposing reasonable costs.

5. On other hand, learned counsel appearing for the

1st respondent / plaintiff submits that the present petitioners who are

defendants 4 and 5 were served with notice and vakalat was filed on

their behalf, and in these circumstances, it cannot be said that

summons was not served on them. He further submits that the

petitioners were set ex parte on 18.01.2006, and the present

application was filed after a period of twelve years, and there is no

proper explanation for setting aside the ex parte order. He further

submits that under the application filed under Order 9, Rule 7 CPC,

the petitioners cannot seek extension of time for filing written

statement, and in fact the petitioners are required to file an

application under Section 148 of CPC seeking extension of time for

filing written statement, and if there is sufficient cause, the court

would be justified in extending of time. But, in the present case,

though summons were served, petitioners herein failed to file written

statement within the stipulated time, and hence they were set ex

parte, and no sufficient ground is shown for setting aside the same.

Therefore, the trial court, appreciating the facts and circumstances of

the case, rightly dismissed the application and hence the impugned

order may not be interfered with.

6. He submits that even though the petitioners / defendants 4

and 5 were set ex parte, they are not precluded from participating in

the trial, and they are at liberty to lead evidence and cross-examine

the witnesses. But under the petition filed under Order 9, Rule 7 of

CPC., they cannot seek to extend the time for filing written statement.

In support of his contentions, learned counsel relied on the judgment

of the Apex Court in RAMESH CHAND ARDAWATIYA v. ANIL

PANJWANI1. With these submissions he sought to dismiss the

revision.

7. Now the point that arises for consideration is, ' whether the

impugned order warrants any interference?'

(2003)7 SCC 350

8. Though notice is served on respondents 5, 7 and 8, there is

no representation on their behalf. Respondents 2 3 and 4 died and

they were represented by their legal representatives.

9. Learned counsel for the petitioners filed memo with regard to

service of personal notice on the respondents and in respect of

respondent No.6, it is shown that notice was returned un-served with

postal endorsement 'door locked'.

10. The Apex Court in N.PARAMESWARAN UNNI vs.

G.KANNAN12, held that "15. This Court in a catena of cases has held

that when a notice is sent by registered post and is returned with postal

endorsement "refused" or "not available in the house" or "house locked"

or "shop closed" or "addressee not in station", due service has to be

presumed."

11. In the present case, the memo filed by the learned counsel

for the petitioners shows that notice was sent to the address given by

the plaintiff in the cause title and it was returned as 'door locked'.

Hence, as per the judgment of the Apex Court (2 supra), due notice on

respondent No.6 has to be presumed.

12. In the present case, the suit is filed for partition and the

case of the petitioners / defendants 4 and 5 is that they are the

grandchildren of Janaki Bai, who is the first wife of late Maniklal,

common ancestor, and who is possessed of agricultural lands and also

(2017)5 SCC 737

movables, and died intestate. Therefore, the claim of the petitioners

/D-4 and D-5 is that they acquired the right in the suit schedule

property by birth, and that they should be given opportunity to

contest the suit, and without giving them opportunity, adjudication

cannot be made effectively, as they are necessary parties.

13. Having regard to the nature of the suit, and for proper

adjudication and in the interest of justice, I am of the considered view

that they shall be given opportunity to participate in the trial, and the

order dated 18.01.2006 setting them ex parte needs to be set aside by

imposing costs.

14. The next prayer of the petitioners / D-4 and D-5 is for

receiving the written statement i.e., the petitioners are seeing to

receive the memo where-under they want to adopt the written

statement filed by the 8th respondent. As far as receiving the written

statement beyond the period of ninety days from service of summons

is concerned, the petitioners have to seek the aid of Section 148 CPC.,

which provides for enlargement of time. Hence, this prayer cannot be

considered in a petition filed under Order 9, Rule 7 of CPC.

15. In view of the above facts and circumstances, order dated

18.01.2006 setting the petitioners / defendants 4 and 5 ex parte is set

aside and I.A.No.670 of 2018 is allowed to this extent, and they are

allowed to participate in the trial of the suit from this stage.

16. With regard to prayer of the petitioners/defendants 4 and 5

for receiving of written statement, they are at liberty to file an

application under Section 148 CPC before the trial court, which shall

be considered in accordance with law.

17. The issue frames is answered accordingly.

18. The revision petition is accordingly allowed to the extent

indicted above, subject to payment of costs of Rs.10,000/- (Rupees

ten thousand only) to the Telangana State Legal Services Authority

within a period of two weeks from the date of receipt of a copy of this

order. In case of default, the present order stands automatically

recalled, and the impugned order stands confirmed.

19. Interlocutory Applications pending, if any, shall stand

closed.

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M.G.PRIYADARSINI,J

DATE:28--06--2022 AVS