Telangana High Court
Kapil Kumar Kapil Kumar Agarwal vs Ritesh Kumar Ritesh Goel on 24 April, 2025
Author: P.Sree Sudha
Bench: T.Vinod Kumar, P.Sree Sudha
THE HONOURABLE SRI JUSTICE T.VINOD KUMAR
AND
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CIVIL MISCELLANEOUS APPEAL No.8 of 2025
JUDGMENT:
(per Hon'ble Smt. Justice P.Sree Sudha)
This Civil Miscellaneous Appeal is filed against the Order
dated 17.10.2024 in I.A.No.423 of 2022 in O.S.No.220 of 2017
passed by the learned IV-Additional District Judge, Ranga
Reddy District, at L.B.Nagar.
2. The appellant herein/defendant No.1 has filed an
application against the respondents herein before the trial Court
vide I.A.No.423 of 2022 in O.S.No.220 of 2017, under Order 9
rule 13 R/w. Section 151 of CPC, for setting aside the ex-parte
decree dated 04.02.2022 passed in O.S.No.220 of 2017. The
trial Court after considering the arguments of both sides
dismissed the application. Aggrieved by the said Order,
appellant has preferred the present Civil Miscellaneous Appeal.
3. Learned Counsel for the appellant mainly contended that
the trial Court ought to have taken liberal approach for
sufficient cause and allowed the application under Order 9 rule
13 CPC, as per the citation reported in (2000) 3 SCC 54 in the
case of G.P.Srivasthava Vs.R.K.Raizada . Summons were not
served upon the appellant till he received notices in I.A.No.321
of 2022 and it is the sufficient cause to set aside the ex-parte
decree. Appellant is having substantial right over the suit
schedule property, as such ex-parte decree cannot be passed in
a suit for partition. Therefore, requested the Court to set aside
the ex-parte decree passed by the trial Court.
4. Parties herein are referred as appellant/defendant No.1,
respondents No.1 and 2/plaintiffs and respondents No.3 to
5/defendants No.2 to 4, as arrayed before the trial Court in
O.S.No.220 of 2017, for the sake of convenience.
5. Plaintiffs filed the suit vide O.S.No.220 of 2017, against
the defendants for partition, separate possession and
declaration. It is stated in the suit that plaintiffs and defendant
No.1 are closely related to each other. The father of plaintiffs
and the father of defendant No.1 are real brothers. It seems that
plaintiffs and defendant No.1 purchased the suit schedule
property together. However, defendants No.3 and 4 have filed a
suit for specific performance against the suit B-Schedule
property. Defendant No.1 executed an agreement of sale in
favour of defendants No.3 and 4. It is also admitted by the
plaintiffs that defendant No.1 was in physical possession of the
original documents with respect to the suit A, B and C Schedule
properties and requested for 1/3rd share in the suit schedule
property and also to declare the agreement of sale as null and
void and not binding on them.
6. In the Judgment dated 04.02.2022, passed in O.S.No.220
of 2017, the trial Court observed that defendant No.2 had also
filed a suit vide O.S.No.741 of 2015, for specific performance of
contract, against the plaintiffs and defendant No.1. It was
specifically observed that in spite of service of summons,
defendant No.1 did not choose to appear before the Court and
hence he was set ex-parte on 20.04.2017. Though the defendant
No.2 made his appearance by engaging an Advocate, he did not
choose to file the written statement and thus he was set ex-
parte on 27.10.2017. The defendants No.3 and 4 filed their
written statement, but the suit against defendants No.3 and 4
was not pressed, as the Counsel for the plaintiffs filed a memo,
not pressing the suit against defendants No.3 and 4. The trial
Court partly decreed preliminarily partitioning the suit schedule
A, B and C properties into three equal shares and allotted 1/3rd
share each to plaintiffs and defendant No.1.
7. I.A.No.423 of 2022 in O.S.No.220 of 2017 was filed by the
defendant No.1 to set aside the ex-parte decree passed in
O.S.No.220 of 2017. Defendant No.1 stated that he received
notices in I.A.Nos.312 and 322 of 2022, through registered post
on 20.05.2022 and copies of the said application through Court
on 14.06.2022, then only he came to know about the filing of
the suit against him. Later, he approached the Counsel and
found that plaintiffs have obtained the ex-parte decree against
him on 04.02.2022. He also stated that plaintiffs manipulated
the acknowledgment card showing service of summons to him
through post and thus he was set ex-parte on 24.04.2017. As he
has not received any summons, he has no knowledge of the
filing of the suit and his non appearance was neither intentional
nor wanton. The suit schedule properties are the joint family
properties, therefore requested the Court to set aside the ex-
parte decree.
8. In the counter filed by the plaintiffs in I.A.No.423 of 2022,
they stated that notices sent to defendant No.1 were served
upon him, but he remained absent. Defendants No.3 and 4
contested the matter and defendant No.2 received the notice
and appeared before the Court, but later he did not pursue the
matter. Therefore, his contention that acknowledgments are
manipulated is false. In spite of service of notices, he did not
appear on 24.04.2017, as such he was set ex-parte. When they
filed I.A.Nos.321 and 322 of 2022, for passing of the final decree
and for appointment of advocate commissioner, defendant No.1
filed the application for setting aside the ex-parte decree. The
trial Court also directed the defendant No.1 to deliver the
original title deeds regarding suit A, B and C Schedule
properties. As defendant No.1 suppressed the real facts,
requested the Court to dismiss the application.
9. The trial Court considering the arguments of both sides,
observed that as per the docket orders, summons were served
upon defendant No.1 and he was absent. It was also observed
that it was not his case that he was not residing in the address
acknowledged by the Court and he had not filed any document
to show the same. As per Section 27 of the General Clauses Act,
if the summons are sent to the correct address, it is deemed to
be served upon him. Defendant No.1 was set ex-parte on
20.04.2017 and he filed the application for setting aside the
same in the year 2022 and with the said observation, dismissed
the said application.
10. Perusal of the suit shows that defendant No.1 was
residing in the first floor of same residential building. Therefore,
his contention that he did not know about the pendency of the
suit cannot be accepted. Moreover, as per the docket
proceedings, summons were served upon the defendant No.1.
Even after service of summons, he did not appear before the
Court and thus he was set ex-parte. Though defendant No.2
appeared before the Court, he did not file written statement and
remained ex-parte. The case against defendants No.3 and 4 was
not pressed. The learned Counsel for the respondents stated
that notices were served upon defendant No.1 in I.A.Nos.321
and 322 of 2022. This clearly shows that the trial Court
considered all the aspects and rightly dismissed the application
and this Court finds no reason to interfere with the said Order.
11. In the result, the present Civil Miscellaneous Appeal is
devoid of merits and is dismissed by confirming the Order of the
trial Court in I.A.No.423 of 2022 in O.S.No.220 of 2017, dated
17.10.2024. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand
closed.
___________________________
JUSTICE T.VINOD KUMAR
_________________________
JUSTICE P.SREE SUDHA
DATE: 24.04.2025
tri
THE HONOURABLE SRI JUSTICE T.VINOD KUMAR
AND
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CIVIL MISCELLANEOUS APPEAL No.8 of 2025
(Judgment of the Division Bench delivered by Hon'ble Smt. Justice P.Sree Sudha)
DATE: 24.04.2025
TRI
