Telangana High Court
Rock Wood Steel vs Geeta Jaiswal And 5 Others on 28 April, 2023
Bench: P Naveen Rao
* HONOURABLE SRI JUSTICE P.NAVEEN RAO
+ CIVIL REVISION PETITION NOs.866, 869, 874 and 913 OF 2023
% 28.04.2023
# Rock Wood Steel,
A partnership firm having its Office
at # 6-1-289, Casa Rosa,
Padma Rao Nagar, Secunderabad,
rep.by its Managing Partner,
S.Praveen Kumar s/o. S.S.Goud,
Occu: Business, r/o. H.No.12-11-197/4,
Warasiguda, Secunderabad.
..... Petitioner/
Defendant no.1
Vs.
$ Govindan Satya Sai,
Aged about 59 years,
Occu: Business, r/o. Flat No.B-1,
Shantinivas Apartments, Mettuguda
Cross Roads, Secunderabad and others.
..... Respondents/
Plaintiffs/
Defendants
!Counsel for the appellant : Sri Sk.Ahmed Shareef
Counsel for the Respondents 1&2: Sri R.A.Achuthanand
<Gist :
>Head Note:
? Cases referred:
(1955) 2 SCR 1 : AIR 1955 SC 425
(1988) 4 SCC 619
1988 (Supp) SCC 780
(1964) 5 SCR 946 : AIR 1964 SC 993
(2012) 2 SCC 196
PNR,J
CRP Nos.866 of 2023& and batch
2
HIGH COURT FOR THE STATE OF TELANGANA
********
CIVIL REVISION PETITION NOs.866, 869, 874 and 913 OF 2023
Between :
Rock Wood Steel, A partnership firm having its Office
at # 6-1-289, Casa Rosa,
Padma Rao Nagar, Secunderabad,
rep.by its Managing Partner,
S.Praveen Kumar s/o. S.S.Goud,
Occu: Business, r/o. H.No.12-11-197/4,
Warasiguda, Secunderabad.
..... Petitioner/
Defendant no.1
and
Govindan Satya Sai, Aged about 59 years,
Occu: Business, r/o. Flat No.B-1,
Shantinivas Apartments, Mettuguda
Cross Roads, Secunderabad and others.
..... Respondents/
Plaintiffs/
Defendants
DATE OF JUDGMENT PRONOUNCED : 28.4.2023
HONOURABLE SRI JUSTICE P.NAVEEN RAO
1. Whether Reporters of Local Newspapers : Yes
may be allowed to see the Judgments ?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals
3. Whether Their Lordship wish to : No
see the fair copy of the Judgment ?
PNR,J
CRP Nos.866 of 2023& and batch
HONOURABLE SRI JUSTICE P.NAVEEN RAO
CIVIL REVISION PETITION NOs.866, 869, 874 and 913 OF 2023
Date: 28.04.2023
CRP No.866 of 2023:
Between:
Rock Wood Steel,
A partnership firm having its Office
at # 6-1-289, Casa Rosa,
Padma Rao Nagar, Secunderabad,
rep.by its Managing Partner,
S.Praveen Kumar s/o. S.S.Goud,
Occu: Business, r/o. H.No.12-11-197/4,
Warasiguda, Secunderabad.
..... Petitioner/
Defendant no.1
and
Govindan Satya Sai, Aged about 59 years,
Occu: Business, r/o. Flat No.B-1,
Shantinivas Apartments, Mettuguda
Cross Roads, Secunderabad and others.
..... Respondents/
Plaintiffs/
Defendants
The Court made the following:
PNR,J
CRP Nos.866 of 2023& and batch
HONOURABLE SRI JUSTICE P.NAVEEN RAO
CIVIL REVISION PETITION NOs.866, 869, 874 and 913 OF 2023
COMMON ORDER:
Heard learned counsel Sri Sk.Ahmed Shareef for the
petitioners in all the revision petitions, the learned counsel Sri
R.A.Achuthanand for respondents 1 and 2 in CRP No.866 of 2023,
learned counsel Sri Vivek Jain for the respondent no.1 in CRP
No.869 and for respondents 1 and 2 in CRP No.913 of 2023 and
the learned counsel Sri Dharmesh D.K.Jaiswal for respondent No.1
in CRP No.874 of 2013.
2. The parties herein are referred to as arrayed in the suits.
3. O.S.Nos.83, 81, 112 and 80 of 2015 are filed by the
prospective purchasers of individual apartments in Apartment
building called as 'Casa Rosa'. The 1st defendant in all the suits is
the Developer of the property bearing Municipal No.6-1-289, Road
No.5, Padmarao Nagar, Main Road, Secunderabad. The plaintiffs
have instituted the above suits praying to grant decree of specific
performance of the agreements of sale by directing the defendants
to execute registered sale deeds in favour of the plaintiffs in respect
of the suit schedule apartments. Though appearance was entered
PNR,J
CRP Nos.866 of 2023& and batch
by the 1st defendant, he did not file the written statements and the
1st defendant was set ex parte. Trial was conducted and after
hearing the arguments of parties appearing before the trial Court,
learned trial Judge reserved the suits for judgments by fixing the
date of delivery of judgments as 28.06.2023.
4. First defendant filed I.As. in all the suits under Order IX
Rule 7 read with Section 151 of the Code of Civil Procedure, 1908
(for short, 'CPC') praying the Court to set aside the orders setting
him ex parte dated 04.12.2018 (O.S.No.83 2015 & O.S.No.81 of
2015), dated 20.06.2018 (O.S.No.112 of 2015) and dated
31.01.2018 (O.S.No.80 of 2015) and permit him to file written
statements. On 07.06.2022 trial Court passed orders dismissing
the applications. Challenging the same, these Revisions are filed.
5. Learned counsel for 1st defendant contended that due to
wrong advice and wrong prosecution by the learned counsel
engaged by the 1st defendant, 1st defendant could not file the
written statements and could not appear during the course of
conducting trial. When the 1st defendant came to know that the
counsel on record was not contesting the suits and the matters
PNR,J
CRP Nos.866 of 2023& and batch
were at the stage of submission of arguments, immediately
applications were filed under Order IX Rule 7 of CPC praying to
permit the 1st defendant to file written statements and to
participate in the proceedings. According to the learned counsel,
though he sought larger reliefs before the trial Court in the
individual I.As., filed by the 1st defendant, he is now confining
himself for submission of written arguments only and that may be
permitted.
6. In support of the contention that the Applications under
Order IX Rule 7 of CPC are validly filed and that the trial Court
erred in not accepting the pleas raised by the 1st defendant,
learned counsel placed reliance on the following decisions:
i) Sangram Singh vs. Election Tribunal, Kotah and another1;
ii) Modula India vs. Kamakshya Singh Deo2;
iii) Om Prakash vs. Amarjit Singh and another3;
iv) Arjun Singh vs. Mohindra Kumar and others4
7. According to the learned counsel, when the applications were
filed, arguments were not concluded and, therefore, trial Court
(1955) 2 SCR 1 : AIR 1955 SC 425
(1988) 4 SCC 619
1988 (Supp) SCC 780
(1964) 5 SCR 946 : AIR 1964 SC 993
PNR,J
CRP Nos.866 of 2023& and batch
grossly erred in not permitting the 1st defendant to prosecute the
suits further.
8. Per contra, according to the learned counsel Sri
R.A.Achuthanand, the matter is now stands at the stage of
rendering judgments after the cases was heard and reserved for
judgments and, therefore, Order IX Rule 7 of CPC has no
application. He also referred to the provisions in Orders XVIII and
XX of CPC to contend that as the matter is at the stage of
rendering judgment, it is not permissible to reopen the suits and to
permit the 1st defendant to file written statements and that no
further proceedings are pending for the 1st defendant to file written
arguments. In support of his contention, he placed reliance on the
decisions of Hon'ble Supreme Court in Rasiklal Manikchand
Dhariwal and another vs. M.S.S.Food Products5 and Arjun Singh vs.
Mohindra Kumar and others (supra).
9. According to the learned counsel Sri Vivek Jain, as the
Application is not filed within three years, as per Article 137 of the
Limitation Act, the applications filed by the 1st defendant are hit by
delay and laches.
(2012) 2 SCC 196
PNR,J
CRP Nos.866 of 2023& and batch
10. Learned counsel Sri Dharmesh D.K.Jaiswal adopted the
submissions made by the other learned counsel for plaintiffs.
11. All the learned counsel for plaintiffs submit that suits
underwent 20 adjournments for hearing after the 1st defendant
was set ex parte, 67 adjournments till filing of setting aside
applications and 20 adjournments after filing CRPs., and even for
hearing, the suits underwent several adjournments. It is also
further contended that even though orders were passed on
07.06.2022, Copy Applications were filed only on 21.11.2022 and
even though copies were made ready on 12.12.2022, CRPs are filed
on 06.03.2023. All this clearly shows that 1st defendant is not
diligent in prosecuting the litigations and his claim is not bona
fide.
12. Order IX Rule 7 of CPC reads as under:
"Order IX. Appearance of parties and consequences of non
appearance:
Rules (1) to (6) xxx
Rule 7. Procedure where defendant appears on day of adjourned
hearing and assigns good cause for previous non-appearance.--
Where the Court has adjourned the hearing of the suit ex parte, and
the defendant, at or before such hearing, appears and assigns good
cause for his previous non-appearance, he may, upon such terms as
PNR,J
CRP Nos.866 of 2023& and batch
the Court directs as to costs or otherwise, be heard in answer to the
suit as if he had appeared on the day fixed for his appearance."
13. It is to be noted that 1st defendant was set ex parte on
04.12.2018 (O.S.No.83 2015 & O.S.No.81 of 2015), dated
20.06.2018 (O.S.No.112 of 2015) and 31.01.2018 (O.S.No.80 of
2015). Thereafter, cases proceeded further, arguments were
concluded and cases are awaiting verdict. From the plain reading
of Rule 7, it is clear that if the Court adjourned the suit for hearing
after defendant was set ex parte and the defendant, at or before
such hearing, appears and assigns good cause for his previous
non-appearance, he may, upon such terms as the Court directs, as
to costs or otherwise, be heard in answer to the suit as if he had
appeared on the date fixed for his appearance. The crucial words
used are, Court adjourning the suit for hearing ex parte and on the
said date of hearing or before the defendant appears and assigns
good cause, Court may accord opportunity of hearing. In the
instant cases, as noticed above, after he was set ex parte, the trial
was conducted in the cases and after completion of recording of
evidence, Court heard the parties, who appeared before the Court
and reserved the cases for judgments. Thus, strictly going by the
PNR,J
CRP Nos.866 of 2023& and batch
words employed in Rule 7, these are not the cases of the suits
coming up for hearing ex parte when the application was filed.
14. Learned counsel for the 1st defendant sought to contend that
when he filed applications, the cases were at the stage of
arguments and, therefore, merely because later the Court reserved
the cases for judgments, cannot be a ground to through out these
revisions filed against the orders passed in the applications under
Order IX Rule 7 of CPC. I would have appreciated this submission
if only the 1st defendant was diligent in knocking the doors of this
Court immediately after the orders were passed in the applications
filed under Order IX Rule 7 of CPC as by then cases were still at
the stage of oral arguments. Whereas 1st defendant took his own
sweet time and leisurely filed the Revisions only in March, 2023
and in the mean time, the cases underwent several adjournments
for various reasons including for hearing oral submissions and
reserved for judgments.
15. The decision of Hon'ble Supreme Court in Sangram Singh
(supra) also does not come to the aid of the 1st defendant having
regard to the chronology events of these cases. Learned counsel
PNR,J
CRP Nos.866 of 2023& and batch
placed reliance on paragraph-27 of the judgment. In the said
paragraph, the Court noted the terms used in Rule 7 and observed,
"This cannot be read to mean, as it has been by some learned
Judges, that he cannot be allowed to appear at all if he does not
show good cause. All it means that he cannot be relegated to the
position he would have occupied if he had appeared". Admittedly,
in the cases on hand, 1st defendant has not appeared on several
dates of hearing after he was set ex parte trial was conducted and
oral arguments were heard.
16. By placing reliance on Modula India (supra), learned
counsel for 1st defendant sought to contend that having regard to
the facts of these cases, Court could have moulded the reliefs and
could have permitted the 1st defendant to file written arguments at
this stage. He placed reliance on paragraph-22 of the said
judgment. In the said paragraph, Hon'ble Supreme Court observed
that there is a wide discretion with the Court and it is always open
to the Court, where it believes that the plaintiff has been mislead,
to exercise its discretion to shut out cross-examination or to
regulate it in such a manner as to avoid any real prejudice to the
interests of the plaintiff. This observation of the Hon'ble Supreme
PNR,J
CRP Nos.866 of 2023& and batch
Court also does not come to the aid of the 1st defendant. As
noticed above, cases were not at the stage of recording of evidence,
recording of evidence was completed long ago. The matters
underwent several adjournments at the stage of hearing and finally
they were heard and reserved for judgments. What is sought by
the 1st defendant would amount to reopening of the suits for
further hearing.
17. In Om Prakash (supra), Hon'ble Supreme Court observed as
under:
"13. The appeal to the principle in Sangram Singh v. Election
Tribunal, Kotah, Bhurey Lal Bayai [(1955) 2 SCR 1 : AIR 1955 SC 425
: 10 ELR 293] in the circumstances, is not much of assistance to the
appellant. It is true that it would not be necessary for a party to get
rid of an order placing him ex parte if the party wishes to participate
in the proceedings at any particular stage onwards, provided that he
does not seek to be relegated to the position he would have occupied
if he had appeared at the earlier hearing or hearings and does not
seek to set back the hands of the clock. It means that he must
accept all that has gone before and be content to proceed from the
stage at which he has come in. [See also: Arjun Singh v. Mohindra
Kumar [(1964) 5 SCR 946 : AIR 1964 SC 993] ]. In the present case,
appellant did seek to set the hands of the clock backwards; he
wanted the witnesses to be recalled for cross-examination. This,
unfortunately, was not permissible having regard to the finality the
order of remand had assumed."
PNR,J
CRP Nos.866 of 2023& and batch
18. From the reading of this paragraph, it is clear that it would
not be necessary for a party to get rid of an order placing him
ex parte if the party wishes to participate in the proceedings at any
particular stage of the proceedings and onwards, provided that he
does not seek to be relegated to the position he would have
occupied if he had appeared at the earlier hearing or hearings and
does not seek to set back the hands of the clock. In other words,
Hon'ble Supreme Court observed that in a given case, even though
1st defendant was set ex parte, he can be permitted to participate in
the proceedings from the stage at which he filed application to
permit him to prosecute the case. This judgment also does not
come to the aid of the 1st defendant inasmuch as by the time
applications were filed the cases were at hearing stage and by the
time these Revision Petitions are taken up for consideration the
matters stand at the stage of rendering judgments after arguments
were concluded. Thus, permitting the 1st defendant to participate
in the proceedings would necessarily mean that the cases have to
be reopened. In an application filed under Order IX Rule 7 of CPC
cases reserved for judgments cannot be reopened.
PNR,J
CRP Nos.866 of 2023& and batch
19. In Arjun Singh (supra) also, Hon'ble Supreme Court
observed that if the defendant appears on such adjourned date
and satisfies the Court by showing good cause for his non-
appearance on the previous day or days he might have the earlier
proceedings recalled and have the suit heard in his presence. On
the other hand, even if he failed in showing good cause, he is not
penalised in the sense of being permitted to take part in the further
proceedings of the suit or whatever might still remain of the trial,
only thing is he cannot claim to be relegated to the position that he
occupied at the commencement of the trial. Hon'ble Supreme
Court further observed that there is no scope for invocation of the
inherent powers of the Court to make an order necessary for the
ends of justice.
19.1. It is also appropriate to note the observations of Hon'ble
Supreme Court. It is said that,
"20. ..... when once the hearing starts, the Code contemplates only
two stages in the trial of the suit: (1) where the hearing is
adjourned or (2) where the hearing is completed. Where, the
hearing is completed the parties have no further rights or privileges
in the matter and it is only for the convenience of the Court that
Order XX Rule 1 permits judgment to be delivered after interval
after the hearing is completed. It would, therefore, follow that after
the stage contemplated by Order IX Rule 7 is passed the next stage
PNR,J
CRP Nos.866 of 2023& and batch
is only the passing of a decree which on the terms of Order IX Rule
6 the Court is competent to pass. And then follows the remedy of
the party to have that decree set aside by application under Order
IX Rule 13. There is thus no hiatus between the two stages of
reservation of judgment and pronouncing the judgment so as to
make it necessary for the Court to afford to the party the remedy of
getting orders passed on the lines of Order IX Rule 7. .."
19.2. Having observed so, Hon'ble Supreme Court opined that the
Civil Judge was not competent to entertain the application dated
May 31, 1958 purporting to be under Order IX Rule 7 of CPC.
From the facts, it is seen that the suit underwent few
adjournments on the plea for possible compromise between the
parties. It was finally posted to 29.05.1958. While adjourning to
29.05.1958 Court recoded that "If no compromise was filed the case
would be taken up for final hearing". On 29.05.1958, the plaintiff
was present, but the appellant was absent and the latters'
Counsel, who was present reported that they had no instructions
to conduce the case. Thereupon, the Court passed an order in
Suit 134 of 1956 holding that,
"The plaintiff is present. Defendant is absent. Counsel for the
defendants have no instructions. Case proceeds ex parte.
Plaintiff examined Mohinder Kumar and closed".
PNR,J
CRP Nos.866 of 2023& and batch
The order concluded with the words "Judgment reserved". Later,
defendant filed application praying to set aside setting him ex parte
and he be given an opportunity to contest the suit. It is thus clear
that after the judgment is reserved, application under Order IX
Rule 7 of CPC cannot be filed.
20. In Rasiklal Manikchand Dhariwal (supra), Hon'ble
Supreme Court held that once hearing of the suit is concluded and
the suit is closed for judgment, Order IX Rule 7 of CPC has no
application at all. Hon'ble Supreme Court said that the very
language of Order IX Rule 7 makes this clear. This provision
presupposes the suit having been adjourned for hearing. It is
further observed that adjournment for the purposes of
pronouncing judgment is no adjournment of the "hearing of the
suit".
20.1. In the said case, on 17.3.2005, the trial Court closed the
evidence of the plaintiff; ordered the suit to proceed ex parte as the
defendants failed to appear on that date; heard the arguments of
the advocate for the plaintiff; and kept the matter for
pronouncement of judgment on 28.3.2005. Taking note of these
PNR,J
CRP Nos.866 of 2023& and batch
developments, Hon'ble Supreme Court held that Order IX Rule 7 of
CPC has no application at all and application made by the
defendants under this provision was rejected by the trial court. In
paragraph-54, Hon'ble Supreme Court referred to the observations
of the Hon'ble Supreme Court in Arjun Singh (supra), extracted
above.
21. Having regard to the proposition of law laid down by the
Hon'ble Supreme Court in the decisions referred to above, and
looking into the facts of these cases, it is clear that after arguments
were heard, the trial Court reserved the cases for judgments and
fixed 28.06.2023 as the date for pronouncement of the judgments.
Since the cases were already reserved for judgments, Order IX Rule
7 of CPC cannot be invoked. Though when the applications were
filed, the cases were at the stage of the arguments only, but the 1st
defendant was not diligent to immediately prosecute his further
remedies. He took about six months to file Copy Applications
(21.11.2022). Though Certified Copies were made ready on
12.12.2022, he took more than three months to file these
Revisions. These Revisions are filed after more than 9 months of
the orders passed by the trial Court. Admittedly, after the orders
PNR,J
CRP Nos.866 of 2023& and batch
were passed in IAs filed by the 1st defendant in the respective suits,
further hearings took place and after conclusion of the hearings,
the cases were reserved for judgments. Therefore, at this stage,
the remedy of Order IX Rule 7 of CPC is not available to the 1st
defendant.
22. Further, in the applications filed by the 1st defendant, he
prayed to set aside the order setting him ex parte and to permit
him to contest the suits. By the time the applications were filed,
suits were at the stage of hearing after the conclusion of the trial.
Accepting the prayer of the 1st defendant would mean relegating
him in the suits to the position he would have occupied if he had
appeared in the earlier hearing or hearings before commencement
of trial. Such course is not available to the 1st defendant. Even
otherwise, the 1st defendant was not diligent in prosecuting the
litigation and invited adverse orders only by his non-participation
in the proceedings in the suits. He has also not taken timely steps
to file these Revisions. He has to blame himself for the present
state of affairs.
PNR,J
CRP Nos.866 of 2023& and batch
23. The orders against which these Revisions are filed are well
considered decisions. I, therefore, do not see any merit in these
Revisions. The Civil Revision Petitions are accordingly dismissed.
There shall be no order as to costs. Pending miscellaneous
applications if any shall stand closed.
__________________________
JUSTICE P.NAVEEN RAO
Date: 28.04.2023
KKM
PNR,J
CRP Nos.866 of 2023& and batch
HONOURABLE SRI JUSTICE P.NAVEEN RAO
CIVIL REVISION PETITION NOs.866, 869, 874 and 913 OF 2023
Date: 28.04.2023
kkm
