Konda Nageshwara Rao vs Ambati Saidamma
2022 Latest Caselaw 4743 Tel

     THE HON'BLE SMT. JUSTICE P. SREE SUDHA

                   C.R.P.No.522 of 2021

ORDER :

1. This Civil Revision Petition is filed against the

common order dated 16.03.2021 in I.A.Nos.690 and

691 of 2016 in O.S.No.48 of 2014 passed by the Junior

Civil Judge, Huzurnagar.

2. The respondent herein filed O.S.No.48 of 2014

against the petitioner herein for perpetual injunction.

The petitioner herein remained ex-parte and the suit

was decreed with costs on 24.06.2014. Thereafter, the

respondent herein filed E.P.No.6 of 2016 and

requested the court to send the petitioner

herein/judgment debtor to civil imprisonment for a

period of thirty days as the judgment debtor interfered

with her peaceful possession on 25.02.2016 in spite of

the decree passed by the trial Court.

3. While so, the defendant in the suit filed

I.A.Nos.690 of 2016 and 691 of 2016 to condone the

delay of 724 days in filing the set aside petition and to

set aside the ex-parte decree dated 24.06.2014. The

trial Court, vide common order dated 16.03.2021

dismissed both the applications. Aggrieved thereby,

the present Civil Revision Petition is filed.

4. Learned counsel for the petitioner contended that

the delay in filing the application is beyond the control

of the petitioner and as per the compromise entered

between the parties, but the trial Court without

adopting the pragmatic approach dismissed the

applications. The trial Court also observed that the

documents of compromise were not filed by the

revision petitioner. In fact, the suit is in respect of

agricultural land, where the valuable rights of the

parties are involved and therefore, passing of ex-parte

decree is deprecated. Thus, requested the Court to set

aside the order.

5. The defendant in the suit filed I.A.Nos.690 of

2016 and 691 of 2016 to condone the delay of 724

days in filing the set aside petition and to set aside the

ex-parte decree passed on 24.06.2014.

6. Learned counsel for the defendant stated that

after filing of the suit, the defendant along with village

elders approached the plaintiff and questioned her

why she has filed the above suit even though the suit

schedule land was sold by her, but she stated that

keeping in view of the old disputes she filed the suit for

perpetual injunction and in view of mediation of elders

of the village, he paid Rs.2,00,000/- to the plaintiff in

three instalments and it was received by her and

assured that she will close the above suit. Believing

her words only the defendant went away and thought

that the suit would be dismissed as settled out of the

Court. But, in contravention to the terms of

compromise, she pursued the litigation and decree was

passed in her favour and that when she filed E.P., he

came to know about the decree and there is no

intentional delay or negligence in filing the aforesaid

petitions and thus requested the Court to condone the

delay of 724 days in filing the set aside petition and to

set aside the ex-parte decree dated 24.06.2014. But,

the plaintiff in her counter stated that on 03.03.2014,

the defendant appeared through his counsel and the

case is posted to 25.03.2014 for filing written

statement and thereafter the matter was adjourned

from time to time for filing written statement i.e.,

02.05.2014, 01.06.2014, 09.06.2014. On 12.06.2014

as the defendant called absent and as there was no

representation on behalf of the defendant, he was set

ex-parte on that day and the matter is posted to

19.06.2014 and the plaintiff was examined as PW.1

and exhibits were marked and the matter is posted on

24.06.2014 for judgment. Neither the petitioner nor

his counsel made any representation before the Court

regarding settlement or payment of additional amount

of Rs.2,00,000/- to the plaintiff and no written

statement was filed before the trial Court and two

years after passing of the decree, when the defendant

tried to interfere with the peaceful possession of the

plaintiff, she filed E.P. and then the defendant came

up with the aforesaid applications only to prolong the

litigation. The defendant is residing at Chowtapally

village, Mattampally Mandal and it is nearer to

Huzurnagar town and weekly once he is contacting his

counsel but he did not appear before the court and not

filed his written statement within time. As such, the

trial Court had rightly passed the ex-parte

decree.

7. In a counter filed by the respondent-Ambati

Saidamma, she stated that the petitioner filed caveat

and appeared on 03.03.2014 and the case is posted for

written statement and the matter is adjourned for

several times and posted to 12.06.2014 and on that

day the petitioner was set ex parte and posted to

19.06.2014. On that day she was examined as P.W.1

and decree was passed on 24.06.2014. She stated that

no material was placed regarding additional payments

for two years and thus the trial Court considering the

material on record decreed the suit in her favour and

rightly dismissed the applications. She filed E.P.No.6 of

2016 on 11.03.2016 to which the petitioner filed

counter on 30.11.2016. The land in Sy.No.574 of an

extent of Ac.2.30 guntas was allotted to her by the

Tahsildar, Matampally vide Patta Filer No.12970 of

2005 dated 27.06.2005 and in Sy.No.882 in her favour

and pattadar pass books and title deeds were also

issued and she is in possession and enjoyment of the

same and thus the trial Court decreed the suit on

merits in her favour and as per Letter No.9 of 2019

dated 12.08.2019 of the Tahsildar to the District

Collector the name of the petitioner was not shown as

occupant in Sy.No.574. She further stated that interim

directions were granted in W.P.No.12594 of 2020 dated

15.09.2020 and in C.C.No.24 of 2022 and notices were

also issued to the contemnors on 28.01.2022 and it is

pending and thus requested the Court to dismiss the

revision.

8. The trial Court, considering the arguments of

both the counsel, observed that there is no evidence

regarding payment of Rs.2,00,000/- for closure of the

suit. When once the defendant appeared before this

Court, it is for him to file written statement in time. In

spite of granting sufficient opportunity, he did not file

written statement and he was set ex-parte and he filed

the aforesaid applications after 724 days i.e., more

than two years and there is no sufficient cause to allow

the applications and no supporting evidence was filed

and accordingly dismissed both the applications.

9. The petitioner herein filed copy of the agreement

of sale dated 31.01.2011 and also receipts dated

13.03.2011, 16.09.2011 and 01.03.2012 regarding

payment of Rs.60,000/-, Rs.10,000/- and Rs.20,000/-

respectively. The agreement of sale was entered for

sale of the land admeasuring 3 acres in Sy.No.574 for

Rs.7,95,000/-. Another document is also filed

regarding payment of Rs.6,95,000/- and balance of

Rs.1,00,000/- is to be paid on 20.09.2014.

10. In the case on hand, the notice was served to the

petitioner herein and he engaged the counsel but he

could not file written statement in spite of granting

sufficient adjournments but he stated that he entered

into compromise with the plaintiff and paid

Rs.2,00,000/- with the intervention of the elders and

he was under the impression that the plaintiff had

withdraws the suit and he only came to know about

the ex-parte order after filing of the E.P. He has not

filed receipt regarding payment of Rs.2,00,000/- and it

was clearly mentioned that he has to pay balance of

Rs.1,00,000/-. It seems that as he failed to pay the

balance within time the plaintiff filed the suit in the

year 2014 and the said suit is filed only for perpetual

injunction. Therefore, the contention of the petitioner

herein that valuable rights of the parties are involved is

not tenable. If at all, the petitioner had paid

Rs.2,00,000/- in pursuance of the mediation before

the elders, he might have brought it to the notice of the

trial Court during pendency of the proceedings, but he

never appeared before the Court and made any

representation and not even filed the receipt for the

said amount. He simply kept quiet during pendency of

the proceedings and in spite of granting sufficient

opportunity the petitioner, he has not filed written

statement, as such, the trial Court, considering all the

facts, had rightly dismissed both the applications and

this Court finds no reason to interfere with the

impugned order.

11. Accordingly, the Civil Revision Petition is

dismissed confirming the order of the trial Court. No

costs.

12. Pending miscellaneous applications, if any, shall

stand closed.

____________________ P. SREE SUDHA, J Date:20.09.2022 Prv