Kallepu Laxma Reddy And Another vs Narahari Kamala
2023 Latest Caselaw 958 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                        C.R.P.No.2885 of 2022

ORDER :

This Civil Revision Petition is filed against the order dated

30.08.2022 in C.M.A.No.8 of 2019, on the file of Principal District

Judge, Jagitial which arose out of the order in I.A.No.339 of 2014

in O.S.No.4 of 2014 dated 11.07.2019 on the file of Senior Civil

Judge, Jagitial. The revision petitioners are the plaintiffs in

O.S.No.4 of 2014.

2. For the sake of convenience, the parties herein are referred to

as arrayed before the Court below.

3. Heard the learned counsel for the petitioners and the learned

counsel for the respondents.

4. Initially, the suit was filed by the plaintiffs for declaration of

title and perpetual injunction restraining the defendant and her

agents etc., from interfering with the peaceful possession and

enjoyment of the suit schedule property admeasuring Ac.7-34 gts

in Sy.No.801 situated at Namillikonda Revenue Village of

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Kodimial Mandal, Karimangar District and also to declare the

registered sale deed bearing document No.1469 of 2013 dated

29.03.2013 on the file of Sub-Registrar, Mallial, Karimnagar

District as null and void and not binding against the plaintiffs.

5. The plaintiff Nos.1 and 2 are the son and mother

respectively. In nutshell, the averments in the plaint are that the

father of the 1st plaintiff and husband of the 2nd plaintiff by name

Kallepu Raji Reddy died intestate on 26.03.2010 leaving behind

the plaintiffs as his legal heirs who was holding a joint family

agricultural land to an extent of Ac.8-13 gts, in Sy.No.801, situated

at Namillikonda Revenue Village of Kodimial Mandal, Karimangar

District and thus the plaintiffs have share over the said property. It

is the specific averment in the plaint that a group of unsocial

elements with an intention to grab the suit schedule property

created agreement of sale-cum-GPA without payment of sale

consideration in the name of Kallepu Raji Reddy on 23.03.2007

and basing on it, the possession was handed over to the GPA

holder. But, it is the case of the plaintiffs that they are in

possession of the property and cultivating the same, even after the

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death of Kallepu Raji Reddy they have also raised green gram crop.

It is the further case of the plaintiffs that after the death of K.Raji

Reddy, the GPA-cum-Agreement of Sale has expired and without

the knowledge of the plaintiffs, the GPA holder has executed

registered sale deed on 29.03.2013 in favour of the defendant,

which is not valid in the eye of law and therefore, filed a suit for

cancellation of said sale deed and also sought for relief of

declaration of tile as well as the possession of the property.

6. The record reveals that the respondents were set ex-parte as

they refused to receive summons of the Court and the trial Court

has examined the 1st plaintiff as P.W.1 and got marked Exs.A-1 to

A-17. Considering the evidence of P.W.1, the trial Court has

decreed the suit with costs declaring the plaintiffs as owners and

possessors of the suit schedule property and also declared

registered sale deed of the defendant bearing document No.1469 of

2013 dated 29.03.2013 as null and void and not binding on the

plaintiffs.

7. Being aggrieved by the judgment and decree in O.S.No.4 of

2014 dated 22.04.2014, on the file of Senior Civil Judge, Jagitial,

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the defendant has preferred CMA.No.8 of 2019 along with two

interlocutory applications i.e., I.A.No.338 of 2014 and I.A.No.339

of 2014 to condone the delay of 24 days in filing the petition and

to set aside the exparte decree dated 22.04.2014 respectively. It is

the specific contention of the defendant before the appellate Court

i.e., Principal District Judge, Jagitial that no summons were served

on her and that process server did not come to her house and she

did not refuse to receive summons. It is the contention of the

defendant that she only came to know about the ex-parte decree

dated 22.04.2014 when her supervisor informed that the plaintiff

No.1 has approached to the suit schedule property and served copy

of the ex-parte decree dated 22.04.2014 and on that she

immediately approached her counsel and advised him to file a

petition to set aside the ex-parte decree. But due to summer

vacation, her counsel could not file the petition and that there was a

delay of 24 days. The record reveals that the Principle District

Judge, Jagitial has allowed I.A.No.338 of 2014 and condoned the

delay of 24 days in filing the petition and dismissed I.A.No.339 of

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2014 seeking to set aside the ex-parte decree. Being aggrieved by

the same, the present Criminal Revision Petition is filed.

8. It is the contention of the revision petitioners that they had

fair chance in succeeding the suit and the registered sale deed

executed by the father of plaintiff No.1 in favour of the defendant

cannot be set aside, without the evidence of the defendant under the

guise of defendant being ex-parte. The trial Court ought not have

dismissed the petition filed under Order IX Rule 13 of CPC as

petition under Section 5 of Limitation Act was allowed and

therefore prayed to set aside the orders of the Principal District

Court, in CMA.No.8 of 2019.

9. On the other hand, learned counsel for the respondent

contend that the registered sale deed is void ab initio as it has been

executed subsequent to the death of father of plaintiff No.1 and as

the GPA document comes to an end, the question of GPA further

selling the property in favour of the defendant does not arise.

10. On perusal of the entire material on record and also the rival

contentions, it is evident that the the defendant was set ex-parte by

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the Senior Civil Judge Court, Jagitial (trial Court) with a specific

contention that the defendant has refused to take notice. The

judgment of the trial Court disclose that "the defendant remains ex-

parte since she refused to receive summons sent by the Court".

After coming to know about the judgment and decree, the

defendant herein filed I.A.No.338 of 2014 and I.A.No.339 of 2014

to condone the delay of 24 days as well as to set aside the ex-parte

decree wherein the trial Court has allowed the I.A.No.338 of 2014

condoning the delay of 24 days but dismissed I.A.No.339 of 2014

filed under Order IX Rule 13 for setting aside the ex-parte decree.

Being aggrieved by the same, CMA has been filed before the

Principal District Judge.

11. On perusal of the orders in I.A.No.338 of 2014 dated

11.07.2019 on the file of Senior Civil Judge, Jagitial, it is evident

that the defendant has taken a plea that the plaintiffs managed the

process server of the Court, who filed a false report that the

defendant refused to receive summons. The Court record discloses

that the summons were issued to the defendant on her address and

the process server of the District Court reported on oath that on

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07.02.2014 when he went to the given address, the petitioner was

present in her house, but she has refused to receive the summons,

hence he affixed copy of the order on the door but no one came

forward to make signature as witness. Basing on the said report,

the Court held service of summons sufficient and the defendant

was set ex-parte on 03.03.2014 and thereafter ex-parte judgment

and decree was passed against the defendant on 22.04.2014. It is

the specific contention of the defendant that process server was

managed by the plaintiffs and plaintiffs did not prefer to get the

process server summoned or examined to prove the truth in her

allegations.

12. Admittedly, defendant was set ex-parte before the trial

Court, as she refused to receive the summons but contrary to that it

is the specific plea of the defendant that she never refused to take

summons and the delay caused in filing the petition is only 24

days. The trial Court having condoned the delay of 24 days has

dismissed the set aside petition. It is a matter of fact to be decided

on merits, in order to determine rights of both the parties

conclusively. The trial Court has given a finding that "As per the

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2nd proviso of Order IX Rule 13, no Court shall set aside the decree

ex-parte merely on the ground that there has been irregularity in the

service of summons, if it is satisfied that the defendant had notice

of the date of hearing and had sufficient time to appear and answer

the plaintiffs' claims. In the instant case, the defendant has

deliberately refused to receive the summons sent to her and

therefore she is not entitled to get the ex-parte decree set aside.

The finding of the trial Court is not at all tenable. Once it is the

contention of the defendant that she has not received any summons,

the trial Court ought to have recorded the statement of process

server as allegations are leveled against the officer of the Court.

There is no evidence on record to prove that the process server

appeared before the Court and an oath deposed before the Court

that the defendant refused to receive summons, though the said fact

formed part and parcel of the said judgment.

13. In the absence of such record, this Court is of the opinion

that the trial Court ought to have set aside the ex-parte judgment

and decree by giving opportunity to both the parties to adduce

evidence and the trial Court ought to have decided the case on

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merits by considering the death certificate of the father of plaintiff

No.1 and GPA executed by the plaintiffs in favour of the attorney

holder and also considering the sale deed which has been registered

subsequent to the death of the father of the plaintiff No.1 in order

to put an end to the litigation.

14. In view of the above observations, this Court is of the

opinion that orders in CMA.No.8 of 2019 dated 30.08.2022 on the

file of Principle District Judge, Jagitial are to be set aside and

consequently, the orders of the trial Court in I.A.No.339 of 2014

dated 11.07.2017 on the file of Senior Civil Judge, Jagitial are

liable to be set aside. Accordingly, I.A.No.339 of 2014 on the file

of Senior Civil Judge, Jagitial is hereby allowed. Further, both the

parties shall maintain status quo orders till passing of final orders

and as the suit is of the year, 2014, the trial Court shall record the

evidence of both the parties and shall dispose of the suit within 6

months from the date of receipt of a copy of this order.

15. In the result, this Civil Revision Petition is allowed. No

order as to costs.

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Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J

Date: 27.02.2023 dv