Telangana High Court
M/S P. Kishan Lal Dawasaz, A Registered ... vs Late Kamala Devi Mundadadied on 21 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL MISCELLANEOUS APPEAL No.663 of 2023
ORDER:
This Appeal is filed aggrieved by the order, dated
12.09.2023, passed by the X Additional Chief Judge, City Civil
Court, Hyderabad in I.A.No.710 of 2017 in O.S.No.470 of 2015,
whereby the application filed under Order IX Rule 13 r/w Section
151 CPC praying to set aside the ex parte judgment dated
31.10.2016 in O.S.No.470 of 2015 was dismissed.
2. The petitioner is defendant No.10 in the subject suit which
was filed for partition and separate possession of the suit schedule
property. In the said suit, defendant Nos.1 to 5 and 9 remained ex
parte and the right of filing written statement by defendant Nos.6 to
8 and 10 to 12 was forfeited. Subsequently, the trial Court held that
the plaintiff is entitled for partition of the suit schedule property
and for allotment of her 1/3rd share by metes and bounds and
accordingly, allowed the said suit passing preliminary decree, vide
its judgment dated 31.12.2016
3. The appellant, who is defendant No.10 in the said suit, filed
an application in I.A.No.710 of 2017 seeking to set aside the ex
pate judgment. The trial Court by the impugned order dismissed
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the said application. Aggrieved by the same, the present Appeal is
filed.
4. Heard Sri Keerthi Arun Kumar, learned counsel for the
appellant. Despite service of notice on the respondents, none
choose to enter appearance through counsel and contest the matter.
Perused the entire material available on record.
5. In the grounds of appeal, the appellant contended that
written statement was filed along with two applications on
12.06.2017. However, the trial Court failed to consider the same
and in fact, erroneously held that the written statement was not
filed by the appellant to show his bona fides. However, a perusal of
the record shows that the written statement purported to have been
filed by the appellant along with two applications is not placed on
record.
6. Learned counsel for the appellant contended that the reasons
mentioned in both the applications being one and the same, the trial
court having allowed the delay application, ought to have allowed
the application seeking to set aside the ex parte decree, which is a
consequential relief. However, the trial Court failed to consider the
same and dismissed the said application. He further contended that
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by dismissing the application seeking to set aside the ex parte
decree, the trial Court deprived the petitioner of the opportunity to
contest the suit. Hence, he prayed to allow the Appeal.
7. Learned counsel for the appellant relied upon the decisions
of the erstwhile High Court of Andhra Pradesh in Kavali Narayana
and Others Vs. Kavali Chennamma 1 and P.Buchanna Vs.
B.Yadagiri 2.
8. In P.Buchanna's case (2nd cited supra), the issue involved is
whether a single application could have been filed by the petitioner
therein for condonation of delay and also to set aside the ex parte
decree. The High Court of Andhra Pradesh placed reliance on
various judgments of the Division Bench of the erstwhile High
Court of Andhra Pradesh wherein it was held that as per Rule 55 of
the Rules of 1980, filing of individual applications for separate
reliefs is not a universal principle and as regards the applications
under Order IX Rule 13 CPC, condonation of delay, whenever
such applications are filed beyond the stipulated period of
limitation, is interconnected with the main relief viz., setting aside
of the ex parte decree, one can exist in the absence of the other.
MANU/AP/0002/2005
MANU/AP/0068/2017
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Ultimately, the erstwhile High Court of Andhra Pradesh allowed
the petition filed seeking to condone the delay in filing the
application to set aside ex parte decree and also set aside the ex
parte decree.
9. In the instant case, the appellant admittedly filed two
separate applications viz., one for condonation of delay in filing the
application to set aside the ex parte decree and one application to
set aside the ex pate judgment. Therefore, the aforesaid judgment
does not apply to the facts of the present case and is of no help to
the appellant.
10. In Kavali Narayana's case (first cited supra), the erstwhile
High Court of Andhra Pradesh observed that the reasons pleaded
for condonation of delay are justifiable and further, in view of the
fact that the reasons pleaded for condonation of delay and setting
aside the ex parte preliminary decree are one and the same, while
allowing the application for condonation of delay in filing the
application to set aside the ex parte order, the application seeking
to set aside the ex parte decree was also allowed.
11. In the given facts and circumstances of the case, the
aforesaid judgment squarely applies to the case on hand.
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12. In the instant case, the undisputed facts are that the right of
the appellant, who is defendant No.10 in the suit, for filing written
statement was forfeited on 28.12.2015. Subsequently, he filed two
applications, viz., one for reopening the suit and one for setting
aside the order dated 28.12.2015.
13. The trial Court dismissed both the applications on
31.10.2016 and on the even date, the trial Court passed preliminary
decree in favour of the plaintiff. Subsequently, the appellant filed
two applications, viz., I.A.No.442 of 2017 seeking to condone the
delay in filing the application for setting aside the ex parte order
and I.A.No.470 of 2015 seeking to set aside the ex parte order. The
trial Court by its order dated 30.08.2017 allowed the application
filed seeking condonation of delay. The matter was carried in
Revision before this Court by the plaintiff and the said CRP was
dismissed.
14. Here, it is trite to note that the reasons putforth by the
appellant in both the applications are almost one and the same. But,
the trial Court instead of adjudicating both the aforesaid
applications together, initially allowed the application filed for
condonation of delay in filing the application to set aside the ex
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parte order, vide order dated 30.08.2017, and kept the application
filed to set aside ex parte order pending. Subsequently, the trial
Court passed the impugned order on 12.09.2023 observing that the
appellant failed to show any satisfactory and reasonable cause to
consider the application filed to set aside the ex parte order and
accordingly, dismissed the same.
15. It is to be seen that same reasons were shown by the
appellant for condoning the delay and also for setting aside the ex
parte decree. In such an event, it is not explicit as to how the trial
Court dismissed the application seeking to set ex parte decree
while it allowed the application filed for condoning the delay in
filing the same.
16. Further, it is settled principle of law that when valuable
immovable property rights are involved, the Court should
ordinarily afford opportunity of putting forth their case to both the
parties rather than taking a decision by hearing one party. The
present suit is filed seeking partition and separate possession of the
suit schedule properties, therefore, substantial rights of the parties
are involved. In such an event, the trial Court ought to have
adopted a more pragmatic view and keeping in view the interests of
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both the parties and their rival claims, it ought to have allowed the
application filed seeking to set aside the ex parte decree. But, the
trial Court failed to do so.
17. Further, the judgment and decree passed by the trial Court
in the subject suit is an ex parte one. The appellant, who is arrayed
as defendant No.10, claims to be a bonafide purchaser of the suit
schedule property for valuable consideration. Therefore, if the
present appeal is allowed and the appellant is permitted to contest
the suit, no prejudice would be caused to the respondents and on
the other hand, the rights and claims of both the parties will be
crystallized after full-fledged trial and the matter would be decided
on merits and. When substantial rights in immovable property are
involved, it is desirable that the matter be adjudicated on merits
instead of passing ex parte judgment and decree.
18. In view of the foregoing discussion and reasons and the ratio
laid down in Kavali Narayana's (1st cited supra), this Court is of
the considered view that the trial Court committed irregularity in
dismissing the application filed by the appellant seeking to set
aside the ex parte judgment and therefore, the impugned order is
liable to be set aside.
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19. Accordingly, the CMA is allowed and the order, dated
12.09.2023, passed by the Court of X Additional Chief Judge, City
Civil Court, Hyderabad in I.A.No.710 of 2017 in O.S.No.470 of
2015, is set aside and consequently, O.S.No.470 of 2015 is restored
to the file of the said Court. There shall be no order as to costs.
20. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date:21.03.2024
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