Telangana High Court

Bayyagoni Balaiah vs G Yellamma on 27 February, 2024

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

           Civil Revision Petition No.3511 OF 2023

ORDER:

Aggrieved by the order dated 18.10.2023 in I.A.No.1337 of

2022 in O.S.No.92 of 2013 (hereinafter will be referred as

'impugned order') passed by the learned Senior Civil Judge,

Sangareddy, the petitioner/defendant filed the present Civil

Revision Petition to set aside the impugned order, wherein the

petition filed by the petitioner/defendant under Section 5 of the

Limitation Act, was dismissed.

2. For the sake of convenience, hereinafter, the parties will

be referred as per their array before the Senior Civil Judge,

Sangareddy (hereinafter will be referred as 'trial Court').

3. The brief facts of the case as can be seen from the record

available before the Court that necessitated the revision

petitioner to file the present Civil Revision Petition are that the

respondent/plaintiff filed suit for partition in respect of suit

schedule property against the sole petitioner/defendant.

During the pendency of the suit the petitioner/defendant was

set ex parte on 10.06.2013 and thereafter the suit was

preliminarily decreed on 29.07.2013. The petitioner/defendant

has filed petition under Section 5 of the Limitation Act vide 2 MGP,J Crp_3511_2023

I.A.No.1337 of 2022 to condone the delay of 3302 days in filing

the petition to set aside the exparte decree dated 29.07.2013.

The brief averments of the affidavit filed in support of the

petition in I.a.No.1337 of 2022 are as under:

a) After filing of the suit, he received summons, approached

respondent/plaintiff's counsel, who called the

respondent/plaintiff, settled the matter out of the Court and as

peer settlement he agreed to pay Rs.10 lakhs to the

respondent/plaintiff. Thereafter, the petitioner/defendant

arranged the money within one month, approached the counsel

for the respondent/plaintiff but the respondent/plaintiff did not

turn up and the petitioner/defendant did not approach the

Court to contest the case under the impression that the dispute

was settled.

b) On 03.12.2021 the petitioner/defendant on receipt of

notice from Advocate Commissioner, he verified and came to

know that the suit was decreed ex parte against him and also

came to know about the filing of petition for passing final decree

and appointment of advocate commissioner without any notice

to the petitioner/defendant. However, the advocate

commissioner M. Vijay Raj sent notice to the

3 MGP,J Crp_3511_2023

petitioner/defendant on 03.12.2021, wherein there was no date

and time fixed for execution of commissioner warrant.

c) The petitioner/defendant gave request letter to Advocate

Commissioner to postpone the commission as the same was not

within his knowledge, more particularly when there are

standing crops on the suit schedule properties. But the

Advocate Commissioner in collusion with the

respondent/plaintiff as well as her counsel filed the report

without following the mandatory provisions. The suit schedule

properties are self acquired properties of petitioner/defendant,

however, the defendant requested time to arrange the money for

settlement and accordingly the learned counsel for the plaintiff

assured for settlement. Thus, the petitioner/defendant could

not appear before the Court on 10.06.2013 due to which the

trial Court passed ex parte decree. Hence, prayed to condone

the delay of 3302 days in filing petition to set aside the ex parte

decree.

4. The respondent/plaintiff filed counter denying the petition

averments with a prayer to dismiss the petition and the brief

averments of the counter affidavit are as under:

a) The petitioner/defendant was served with notices in both

the petitions filed for passing final decree and appointment of 4 MGP,J Crp_3511_2023

advocate commissioner and the Court waited till 4.00 PM on

05.10.2021 and the petitioner/defendant was set ex parte on

25.10.2021 and thereafter Advocate Commissioner was

appointed. The respondent/plaintiff is not aware about the

alleged settlement put forth by the petitioner/defendant and in

fact the petitioner/defendant threatened respondent/plaintiff to

see her end if she enters the suit schedule property and

probably that is the reason why the petitioner/defendant did

not approach the Court and contest the case.

b) The petitioner/defendant filed the petition at belated

stage. The Advocate Commissioner issued notice and work

memo notice dated 03.12.2021 to Ameenpur Mandal Surveyor

to conduct the survey and fix up the boundaries with metes and

bounds. Accordingly, the Mandal Surveyor has conducted

survey in the presence of plaintiff, defendant, witnesses,

counsel, Village Revenue Assistant and divided the properties

into two equal parts. As per the advocate commissioner report,

no standing crops were available over the suit schedule

property.

c) After completion of survey, the Management of Sand

Stone Venture removed the boundaries in respect of some of the

suit schedule properties and on that the petitioner/plaintiff 5 MGP,J Crp_3511_2023

approached the Ameenpur Police Station, lodged a complaint,

which was registered as Crime No.403 of 2021 for the offence

under Sections 447 and 427 of the Indian Penal Code. The

defendant also removed some of the boundaries in respect of

suit schedule properties and on that the plaintiff lodged a

complaint, which was registered as Crime No.2 of 2022

(C.C.No.44 of 2022) for the offence under Sections 447 and 427

of the Indian Penal Code against the defendant.

5. The trial Court after considering the rival contentions,

dismissed the petition mainly on the ground that the

petitioner/defendant failed to explain day to day delay.

Aggrieved by the same, the petitioner/defendant filed the

present Civil Revision Petition to set aside the impugned order.

6. Heard both sides and perused the record including the

grounds of revision.

7. Admittedly, the suit filed by the respondent/plaintiff is for

partition of the suit schedule properties. The trial Court has

passed ex parte preliminary decree, as the defendant failed to

contest the case. The only ground raised by the

petitioner/defendant for his non appearance before the trial

Court is that the plaintiff and defendant entered into a 6 MGP,J Crp_3511_2023

monetary settlement before the counsel for the plaintiff and for

arranging the money he took a month's time and when the

defendant approached the counsel for the plaintiff, the plaintiff

did not turn up. It is the contention of the defendant that he

was not aware of the orders setting him ex-parte and also the ex

parte preliminary decree passed against him and on receipt of

notice from the Advocate Commissioner, he came to know about

the orders passed against him.

8. In a suit for partition all the sharers are just and

necessary for proper adjudication of the suit. The plaintiff filed

the suit for partition of suit schedule properties into two equal

shares and to allot one such share to the plaintiff and other

share to the defendant on the ground that the suit schedule

properties are ancestral properties. But the contention of the

defendant is that the suit schedule properties are his self

acquired properties and they are not liable for partition. The

dispute is between the sister and brother in respect of

ancestral/self acquired properties. Whether the suit schedule

properties are ancestral properties or self acquired properties is

the question that needs to be adjudicated in the suit by giving

opportunities to both the sides. It is settled law that a 'lis' has

to be decided by adhering to one of the principles of natural

justice i.e., after hearing both the sides. It is the contention of 7 MGP,J Crp_3511_2023

the defendant that he was not even served notice in the petition

filed by the plaintiff for passing final decree and appointment of

advocate commissioner. It is settled law that even an ex-

parte judgment should contain reasons. The Code of Civil

Procedure does not refer either an ex-parte judgment or an ex-

parte decree and it refers only to a judgment and a decree,

which should contain reasons and should be in conformity with

the provisions of Section 2 (9) read with Order XX Rule 4 of the

CPC. As seen from the record, the trial Court has passed ex-

parte preliminary decree in the form of a docket order dated

29.07.2013, which concluded in seven lines including the

result. Such an ex parte preliminary decree is appearing to be

cryptic as it lacks reasons for arriving to such a decision. It is

to be seen that the ex parte preliminary decree was passed on

29.07.2013 and 8 years thereafter i.e., on 03.12.2021 the

defendant was served with the notice in the interlocutory

applications filed by the plaintiff for passing final decree and

appointment of advocate commissioner. There is no reason as

to why it took eight long years for proceedings further in the

case, more particularly, when the respondent/plaintiff was

granted ex-parte preliminary decree on 29.07.2013. It is not the

case of the respondent/plaintiff that the petitioner/defendant is

aware of the ex parte preliminary decree passed against him. As 8 MGP,J Crp_3511_2023

per the contention of the defendant, it is on 03.12.2021, he

came to know about the passing of ex-parte preliminary decree.

Thus, this Court is of the opinion that the above mentioned

delay of eight years cannot be brushed against the

petitioner/defendant. What we have here is a pure civil matter.

Delay can be condoned, when sufficient reason is shown before

the Court. Though the applicant, who seeks condonation of

delay must explain the delay of each day, it is true that the

Courts should not be pedantic in their approach while

condoning the delay, and explanation of each day's delay should

not be taken literally, but the fact remains that there must be a

reasonable explanation for the delay.

9. Furthermore, in Bhivchandra Shankar More v. Balu

Gangaram More and others 1 the Honourable Supreme Court

observed as under:

"18. It is pertinent to note that as per Section 97 CPC where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. The object is that the questions decided by the court at the stage of passing preliminary decree cannot be challenged at the time of final decree. If no appeal had been preferred against the preliminary decree, the suit filed by the respondents-plaintiffs being a suit for partition, the appellant would be deprived of the opportunity in challenging the decree on merits. In the interest of justice, the appellant and respondents No.14 and 15 are to be given an opportunity to challenge the ex-parte decree dated 04.07.2008 on merits, notwithstanding the dismissal of their application filed under Order IX Rule 13 CPC."

(2019) 6 SCC 387 9 MGP,J Crp_3511_2023

10. Apart from the principle laid down in the above said

citation, let's not forget one of the crucial principles of natural

justice i.e., "Audi Alteram Partem" which means "let the other

party be heard." According to this principle, all parties to a

dispute should be allowed to be heard and present their case. In

other words, the principle asserts that no party should be

condemned unheard and each party has the right to a fair

hearing in any dispute. In Robin Thapa v. Rohit Dora 2 the

Honourable Supreme Court while affirming an order of setting

aside an ex-parte decree, observed 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."

11. In view of the above facts and circumstances, this Court

is of the considered view that the petitioner, who is defendant in

the suit for partition, shall be given an opportunity to put forth

his contentions, enabling the trial Court to pass an appropriate

judgment on merits rather than an ex-parte preliminary decree,

however, on certain terms and conditions.

12. Accordingly, the Civil Revision Petition is allowed and the

impugned order is hereby set aside and thereby the I.A.No.1337

2 2019 (7) SCC 359 10 MGP,J Crp_3511_2023

of 2022 in O.S.No.92 of 2013 is allowed by condoning the delay

in filing a petition to set aside the ex-parte preliminary decree in

O.S.No.92 of 2013 subject to payment of Rs.5,000/- to the High