Syed Miraz Ahmed, Us 2 Others vs S Purna Chandra Rao, Hyderabad 8 ...
2023 Latest Caselaw 1724 Tel

THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

                C.R.P.Nos.1677 & 1820 OF 2017

COMMON ORDER:

      C.R.P.No.1677 of 2017 under Article 227 of the Constitution

of India is directed against the docket order dated 09.12.2016 in

I.A.No.17 of 2016 in O.S.No.392 of 2010, on the file of the

Principal Senior Civil Judge, Ranga Reddy, at L.B.Nagar, wherein

the said application filed by petitioners herein (J.Dr.Nos.1 to 3)

under Section 5 of the Limitation Act to condone the delay of

40 days in filing the petition to set aside the ex parte decree dated

20.10.2015, was dismissed.


2.    C.R.P.No.1820 of 2017 under Article 227 of the Constitution

of India is directed against the order dated 22.02.2017 in E.P.No.20

of 2017 in O.S.No.392 of 2010, on the file of the Principal Senior

Civil Judge, Ranga Reddy, at L.B.Nagar, wherein the said petition

filed by the 1st respondent herein (decree holder) under Order

XXI Rule 32 of the Civil Procedure Code (for short 'the CPC') to

detain JDr.Nos.1 to 3 and their men or their representative in the

civil prison for disobeying the judgment and decree passed in

O.S.No.392 of 2010 dated 30.10.2015, was allowed.

3. Heard the learned counsel for the petitioners and learned

counsel for respondent No.1 in both the revisions. Perused the

record.

4. The petitioners are judgment debtors Nos.1 to 3 in E.P.No.20

of 2017 filed by respondent No.1 herein-decree holder.

Respondent Nos.1 and 5 herein, who are plaintiff Nos.5 and 2 in

the suit, and others filed the suit O.S.No.392 of 2010 for perpetual

injunction restraining the petitioners herein and others from

interfering with their peaceful possession and enjoyment over

plaint 'A' to 'F' schedule properties. While so, the 1st respondent

herein filed E.P.No.20 of 2017 in O.S.No.392 of 2017 under Order

XXI Rule 32 CPC alleging that the judgment debtors are trying

to interfere with the possession of the plaintiffs in spite of the

decree by violating the orders of the Court whereunder the

petitioners/JDrs were set ex parte and the said application was

allowed and warrant of arrest was issued against them under

Order XXI Rule 32(1) CPC. Aggrieved by the same, the revision

petitioners filed the present revision petition.

5. Learned counsel for the petitioners submits that the

petitioners have filed an application under Order IX Rule 9 CPC to

set aside the ex parte decree along with an application under

Section 5 of the Limitation Act to condone the delay of 40 days in

filing the petition to set aside the ex parte decree dated 30.10.2015.

The said application was dismissed. Learned counsel further

submits that as against the said order, the petitioners preferred

C.R.P.No.1677 of 2017 and during the pendency of the suit

proceedings, the 1st respondent herein filed the present EP and the

trial Court passed the impugned orders without knowledge of the

petitioners and set them ex parte. Learned counsel further submits

that the trial Court committed error in passing such order without

proper enquiry and the same is liable to be set aside. In support of

his submissions, learned counsel placed reliance on the following

decisions:

         i.     ROBIN THAPA v. ROHIT DORA1



    (2019) AIR SC 3225





      ii.    G.GOVINDAPPA v. P.R.RAM KRISHNA
             RAO2
      iii.   EKKALDEVI DEVAIAH v. BOJJA LAXMI
             AND OTHERS3
      iv.    BHANU KUMAR JAIN v. ARCHANA
             KUMAR AND ANOTHER4

6. Per contra, learned counsel for respondent No.1 submits that

the suit filed for perpetual injunction was decreed against the

petitioners on 30.10.2015 and the 1st respondent herein filed

application to set aside the ex parte along with an application to

condone the delay of 40 days in I.A.No.17 of 2016 and the

said application was dismissed on merits. Learned counsel further

submits that in spite of the ex parte order and decree dated

30.10.2015 directing the petitioners herein not to interfere with

the peaceful possession and enjoyment of the 1st respondent and

others in respect of A' to 'F' schedule properties, the petitioners

herein have violated the orders of the court and the trial Court had

rightly allowed the application filed by respondent No.1 and

passed the impugned order and the same does not suffer from any

infirmity and prayed to dismiss the civil revision petition.

2 2017 (2) ALD 10

2017(5) ALD 194

(2005) AIR SC 626

7. A perusal of the material on record discloses that the suit

filed by respondent Nos.1 and 5 herein along with others in

O.S.No.392 of 2010 for perpetual injunction against the revision

petitioners was decreed ex parte on 30.10.2015. Subsequently, the

revision petitioners filed an application to set aside the ex parte

decree under Order IX Rule 13 CPC along with an application in

I.A.No.17 of 2016 under Section 5 of the Limitation Act to

condone the delay of 40 days in filing the said application to set

aside the ex parte decree. The revision petitioners stated in the

application that they have filed written statement and also filed an

application under Section 10 CPC and during the pendency of the

said application, on 22.07.2015, noting that the revision petitioners

were absent, the evidence of P.Ws.1 and 2 was closed and as no

notice was given to the revision petitioners, the matter was posted

for defendants' evidence and later the defendants' evidence was

closed and the matter was posted for arguments. An ex parte

judgment and decree was passed on 30.10.2015. It is also pleaded

that the revision petitioners were not having knowledge about the

commencement of the trial and also about the dismissal of the

application filed under Section 10 CPC. The petitioners stated that

the respondents forged their signatures on chief affidavits and

filed the same in the Court, as though they were having notice of

the proceedings. The petitioners have also narrated sequence of

events as to the lack of communication and the fraud played by the

counsel for the other side. The respondents in their reply stated

that the allegations in the petition are all false and the petitioners

have failed to explain sufficient cause for the delay of 40 days in

filing the said application.

8. In G.Govindappa's case (2 supra), this court placed

reliance on the judgment of the Hon'ble Apex Court in

N.BALAKRISHNAN v. M.KRISHNA MURTHY5, wherein it

was held as under:

"13. "It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean

AIR 1998 SC 3222

against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss".

14. In this case explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising revisional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs. Fifty thousand from the delinquent advocate through the Consumer Disputes Riderless Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial court but on a condition that appellant shall pay a sum of Rupee Ten thousand to the respondent (or deposit it in this court within one month from this date.

9. In Robin Thapa's case (1 supra), the Hon'ble Apex Court

held at para 8 as under:

"Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible, adjudication be done on merits.

10. In the instant case, the trial Court has failed to take into

consideration the crucial aspect that the petitioners herein filed

written statement stating that when the chief affidavits were filed,

which according to them, notice was ordered on the chief affidavits

and alleged that the 1st respondent's counsel played fraud as though

notice was received by the revision petitioners and the case was

commenced and due to the absence of their counsel, they were set

ex parte and an ex parte decree was passed. In the light

of these circumstances, the trial Court ought to have considered

the delay treating the same as sufficient cause, as held by the

Hon'ble Apex Court in Robin Thapa's case (1 supra). The trial

Court should have made an endeavour and seen that a litigation is

based on adjudication on the merits in rendering the justice to both

parties in appropriate manner. The trial court ought not to have

terminated the litigation on the default of either of the parties and

their adjudication ought to have been based on merits, which is the

concern of the cause of justice to be adjudicated by the trial Courts.

11. In the present case, the explanation offered by the revision

petitioners is not tainted by any mala fides nor it amounts to

adopting dilatory tactics to protract the proceedings and their action

appears to be based on valid reasons and the delay of 40 days can

be condoned in exercise of discretion of Section 5 of the Limitation

Act. Consequently, C.R.P.No.1677 of 2017 filed challenging the

impugned order dated 09.12.2016 in I.A.No.17 of 2016 is liable to

be set aside.

12. In the result, C.R.P.No.1677 of 2017 is allowed. The docket

order dated 09.12.2016 in I.A.No.17 of 2016 in O.S.No.392 of

2010 of 2010 is hereby set aside. Consequently, I.A.No.17 of 2016

stands allowed. There shall be no order as to costs.

13. Coming to C.R.P.No.1820 of 2017, the impugned order

dated 22.02.2017 in E.P.No.20 0f 2017 was passed setting the

revision petitioners ex parte without giving any valid reasons.

In view of my findings in C.R.P.No.1677 of 2017 wherein the

application filed to condone the delay of 40 days in filing the

petition to set aside the ex parte decree was allowed, the orders in

present civil revision petition are liable to be set aside.

14. In the result, C.R.P.No.1820 of 2017 is allowed.

The order dated 22.02.2017 in E.P.No.20 of 2017 in O.S.No.392 of

2010 is hereby set aside. There shall be no order as to costs.

15. Miscellaneous petitions, if any pending, stand closed.

_______________________ A.SANTHOSH REDDY, J 21.04.2023 Lrkm