Telangana High Court
Smt. Ghousia Begum And 5 Others vs Syed Mahboob And 3 Others on 2 April, 2024
Author: P. Sree Sudha
Bench: P. Sree Sudha
THE HON'BLE SMT. JUSTICE P. SREE SUDHA
Civil Revision Petition.No.2859 of 2022
ORDER:
This Civil Revision Petition is filed against the order, dated:
03.11.2022 passed in I.A.No.619 of 2022 in O.S.No.194 of 2021 on
the file of Junior Civil Judge, Jogipet, Sangareddy District.
2. Heard learned counsel for the petitioners. Notices sent to
respondent Nos.1 and 3 were returned unserved with an
endorsement "refused." Even though paper publication was issued
in Nava Telangana Daily News Paper, Sangareddy District directing
respondent Nos.2 and 4 to appear before this Court, they did not
turn up.
3. Inspite of granting several adjournments,
respondents/defendants did not turn up and they were set ex-
parte and after recording the evidence of P.W1 and after hearing
arguments of the plaintiffs counsel, the matter was reserved for
judgment, but it could not be pronounced on 13.10.2022 due to
heavy work and as such, it was adjourned to 20.10.2022.
4. Learned counsel for the petitioners submits that the
respondents filed an application under Order-9 Rule-13 of CPC to
set aside the ex-parte order, dated: 20.10.2022 and that the trial
Court allowed the same erroneously. He further submits that the
said application is pre-mature, since there is no decree or
judgment passed in the suit till date. He further submits that the
Petitioners have filed CASR.No.335 of 2022, dated: 20.10.2022,
but it was returned with an endorsement that there was no
preliminary decree passed and therefore, requested the Court to
set aside the impugned order passed by the trial Court.
5. Heard the arguments and also perused the entire record.
6. Initially, on 01.09.2021, when summons were issued,
Defendant No.3 is present, Defendant Nos.1 and 2 were absent
and Defendant No.3 requested time for engaging an advocate, and
for filing written statement and that the matter was posted for
fresh appearance of Defendant Nos.1 and 2 and also issued fresh
summons to Defendant No.4. Again on 15.02.2022 Defendant
Nos.1 and 2 were called absent and fresh summons were issued to
them. On 12.04.2022, Defendant Nos.2 and 4 were called absent,
Defendant Nos.1 and 3 were present, and they intended to engage
an advocate, but they could not engage for several adjournments
till 18.08.2022. On that date, again they requested time to file
written statement, as such, they were set ex-parte on 15.09.2022
and on 26.09.2022 after completion arguments, posted the matter
for judgment on 13.10.2022. On that date as the judgment was not
ready, it was posted to 20.10.2022. A perusal of the proceeding
sheet clearly shows that number of opportunities were given to the
respondents/defendants, but they could not get ready with the
matter. However, they filed an application when the matter was
reserved for judgment.
7. In fact, the said application was wrongly filed even after
passing of the judgment or decree, even then, the trial Court
considered it as an application filed under Order-9, Rule-7 of C.P.C
and granted an opportunity, and it was seriously opposed by
learned counsel for the petitioners and he also relied upon a
decision of the Supreme Court in Vishwabandu vs.
Sri Krishna, (C.A.No.6094-6095 of 2021) dated 29.09.2021,
wherein it was observed that;
"when a defendant received summons in time and is
not vigilant to attend the court in time, cannot approach
the Hon'ble Court or for setting aside the decree and
judgment under Order-9 Rule-13 at a later stage and is
stopped to approach the Court in such a condition and
that the present case is also falls within the paramaters
of the said decision."
He also relied upon a decision of the Himachal Pradesh High
Court in Surender Kaur Wife of Salig Ram Vs. Jagtender Son
of Late Yogender Pal 1, wherein it was held that Order-9, Rule-7
1 2022 Law Suit (HP) 658
application is to be entertained before conclusion of the
arguments.
8. In this case admittedly, when the matter was reserved for
pronouncement of judgment, the respondents/defendants filed the
present application. In fact, the said application under Order-9,
Rule-7 is to be filed before conclusion of the arguments in the suit.
Therefore, conversion of application filed under Order-9, Rule-13
into Order-9, Rule-7 by the trial Court is not proper. Therefore, the
order of the trial Court is patently erroneous and is liable to be set
aside.
9. Accordingly, this Civil Revision Petition is allowed by setting
aside the impugned order of the trial Court passed in I.A.No.619 of
2022 in O.S.No.194 of 2021, dated 03.11.2022.
Pending miscellaneous applications, if any, shall stand
closed.
______________________
P. SREE SUDHA, J
Date: 02.04.2024.
Ds
Note:
Issue C.C by tomorrow.
