Telangana High Court

Mr. Mukarram Ahmed vs M/S Osman Gunj Extension Coop ... on 23 September, 2022

Bench: P Naveen Rao

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               HON'BLE SRI JUSTICE P.NAVEEN RAO

           CIVIL REVISION PETITION No. 1455 OF 2022

                           Date: 23-09-2022


Between:

Mr. Mukarram Ahmed, S/o. Murtuza Ahmed, Aged about 34 years,
Occ: Business, Rep by his., GPA Holder, Murtuza Ahmed,
Aged about 61 years, Occ: Business. R/o. 11-1-306,
New Aghapura, Hyderabad, Telangana.


                                                      .....Petitioner

     And

M/s. Osman Gunj Extension Co-Op Housing Society Ltd.,
Rep by its., Secretary, Sri Nandlal Vyas, S/o. Sri Chunnilal Vyas,
Aged about 76 years, Office at 5-2-200/A/ 104, First Floor,
New Osman Gunj, Hyderabad.


                                                     .....Respondent




The Court made the following:
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             THE HON'BLE SRI JUSTICE P. NAVEEN RAO

            CIVIL REVISION PETITION No. 1455 OF 2022

ORDER:

Heard learned counsel Sri Mirza Nisar Ahmed Baig for petitioner

and learned counsel Sri Mettu Srinivas Reddy for respondent.

2. Parties are referred to as arrayed in the suit.

3. Plaintiff claims to be the owner of Mulgi bearing

Municipal No.5-2-200/A/38/34, New Osmangunj, Hyderabad, the suit

premises. On 01.01.2007, plaintiff leased the suit premises to the

defendant on a monthly rent of Rs.5000/- exclusive of electricity

consumption charges and property tax, with annual increase of 10%.

Plaintiff alleges that in December 2008 he paid part rent of Rs.4500/-

and defaulted in payment of rents from January 2009. Plaintiff claims

that he issued notice on 28.06.2010 asking defendant to vacate the suit

premises. Alleging that in spite of service of notice, defendant failed to

vacate the subject mulgi, plaintiff instituted O.S.No.2766 of 2010

praying to grant decree of eviction of defendant, delivery of vacant

possession of the Mulgi, recovery of arrears of rent Rs.1,40,100/- and

future mesne profits at the rate of Rs.10,000/- per month from the date

of suit till delivery of possession.

4. Though summons were served, defendant did not enter

appearance. He was set ex-parte. On analysing the evidence of PW.1

and exhibits A1 to A4, the trial Court rendered judgment on

29.02.2012. The trial Court held that tenancy of defendant was validly

terminated and therefore, defendant is liable to vacate the suit premises

and pay arrears of rent as prayed by the plaintiff.

5. Praying to set aside ex-parte judgment and decree, the defendant

filed I.A.No.845 of 2014 under Order IX Rule 13 of Code of Civil

Procedure.

6. According to defendant, during the years 2010 and 2012, he was

mostly living in foreign country. In the process, he left India in

Novermber 2010 and returned to India on 05.07.2012. He would

contend that he had no notice of filing the suit and he did not receive

summons. He has also filed sworn affidavits of his parents to show that

no notice was received by them. He contended that he did not receive

notice in Execution Petition also.

7. Plaintiff denied the assertion of the defendant. It is pertinent to

note plaintiff categorically asserted that the plea of the defendant that

he was out of the country was not supported by proof.

8. The trial Court noticed that summons were served on 03.02.2011

at the residential address of the defendant as per the record, received

by a person by name M.A.Majeed. Further notice under Section 106 of

the Transfer of Property Act was served on the defendant at the suit

schedule property in the possession of the defendant. The trial Court

also noticed that suit summons sent through registered post was also

served. Taking note of the Order V of CPC, the trial Court held that

summons were properly served. The trial Court also noted that no

evidence was lead in support of the plea raised in the application and

dismissed the I.A.

9. Aggrieved thereby, defendant filed CMA No.70 of 2016 in the

Court of the II Additional Chief Judge. The defendant reiterated the

contentions urged before the trial Court. He has also raised the plea

that he cannot be called as a wilful defaulter.

10. The first appellate Court held that the summons were served on

the residential address of the defendant. Taking note of the submission

of defendant that during the relevant period he was out of the country,

the first appellate Court observed that in his absence, he could have

authorised his agent to receive summons and did not find anything

wrong in the view taken by trial Court on service of summons. The first

appellate Court also noted that defendant failed to establish the fact

that he was out of India during relevant period and that not informed

the same to the plaintiff and that no evidence was produced to

substantiate his version. Holding so, dismissed the CMA.

11. Learned counsel for the defendant contended that he was not in

the country when summons were issued and summons were served on

unknown person and that defendant did not receive summons. He

also contended that defendant did not receive notice under Section

106 of the Transfer of Property Act. He has contended that summons

were not received in Execution Petition also. Learned counsel would

submit that the Courts below grossly erred in not setting aside ex-parte

decree and afford opportunity to set out his defence. He would submit

that he did not default in payment of rents. Defendant is not a wilful

defaulter. In support of his contentions, learned counsel for petitioner

relied on decisions of Hon'ble Supreme Court in Bogidhola Tea and

Trading Co. Ltd. and Anr V.Hira Lal Somani1 and Parimal Vs. Veena

Alias Bharti2.

12. The only cause shown to set aside the ex-parte decree is that

summons were not served on him. These assertions were considered by

the trial Court and first appellate Court. On going through the record,

AIR 2008 SUPREME COURT 911

Civil Appeal No.1467 of 2011

both Courts have held that summons were duly served on the

defendant and that defendant did not show any other cause and both

Courts categorically noted that no evidence was lead by the defendant.

13. By a side wind, learned counsel for defendant also seek to

contend that photocopies of passport entries were filed before the trial

Court. However, the same does not appear to be correct. The trial Court

specifically noted that no evidence was lead. In the grounds of appeal

defendant did not raise plea against the said finding. Before the first

appellate Court also he did not lead any evidence. Herein also no

ground is raised on the failure of lower Courts in not considering the

evidence placed before the Courts.

14. In Bogidhola Tea and Trading Co. Ltd. the Hon'ble Supreme

Court held that the ex-parte decree passed by the trial Court ex-facie

suffered from non-application of mind. It is held that the trial Court

had not applied its mind to the averments made in the plaint and that

the Court was required to consider whether the suit was barred by

limitation. In the case on hand, the trial Court considered the evidence

on record while allowing the suit.

15. In Parimal, the Hon'ble Supreme Court held that the trial Court

can set aside the ex-parte decree against defendant if the party satisfies

the Court that the summons were not duly served or he was prevented

by sufficient cause from appearing when the suit was called for hearing.

The Hon'ble Supreme Court held:

"12. It is evident from the above that an ex parte decree against a defendant has to be set aside if the party satisfies the court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. The legislature in its wisdom, made the second proviso mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein.

13. "Sufficient cause" is an expression which has been used in a large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide Ramlal v. Rewa Coalfields Ltd. [AIR 1962 SC 361] , Lonand Grampanchayat v. Ramgiri Gosavi [AIR 1968 SC 222] , Surinder Singh Sibia v. Vijay Kumar Sood [(1992) 1 SCC 70 : AIR 1992 SC 1540] and Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corpn. [(2010) 5 SCC 459 : (2010) 2 SCC (L&S) 50 : (2010) 2 SCC (Cri) 1291 : (2010) 2 SCC (Civ) 448] )

16. In order to determine the application under Order 9 Rule 13 CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for

hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application."

16. As seen from the decisions of trial Court and first appellate Court

the defendant failed to show any evidence that the summons were not

served on the correct address, that he was out of the country and that

he had not authorized any person to receive notices/registered letters in

his absence. Even though no ground is urged in the revision on leading

evidence before the lower Courts, for the first time he seeks to introduce

evidence in this revision to contend that during the relevant period he

was out of the country. This cannot be permitted.

17. Even otherwise, having regard to provision in Order V of CPC,

I am of the opinion that Courts below have rightly repelled the

contention of defendant that summons were not served on him.

18. In exercise of revisional jurisdiction, this Court has to see