Telangana High Court
K. Ravi Shanker Srinivas vs Kanthilal Patel on 21 May, 2025
Author: P.Sam Koshy
Bench: P.Sam Koshy
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
Appeal Suit Nos.199 and 200 of 2021;
Appeal Suit Nos.314 and 315 of 2022;
and
Civil Revision Petition No.3356 of 2023
COMMON JUDGMENT:
(per the Hon'ble Sri Justice P.Sam Koshy)
These are five matters inter-connected to each other. Therefore, they are
being decided by this common judgment.
2. Heard Mr. S.Nagesh Reddy, learned Senior Counsel representing
Mr. Kailash Nath P.S.S., learned counsel for the appellants in A.S.Nos.199 and
200 of 2021, Mr. Hari Sreedhar, learned counsel for the appellants in
A.S.Nos.314 and 315 of 2022, Mr. Gangaiah Naidu, learned Senior Counsel
representing Mr. P.Vinayaka Swamy and Mr. Koushik Kanduri, learned counsel
for the respondents in A.S.Nos.199 and 200 of 2021 and A.S.Nos.314 and 315
of 2022 and for the petitioner in C.R.P.No.3356 of 2023, and Mr. J. Seshagiri
Rao, learned counsel for the respondent Nos.1 to 3 in C.R.P.No.3356 of 2023.
3. A.S.Nos.199 and 200 of 2021 are filed by Appellant-Rahul Agarwal who
claims to be the grandson of Mohan Lal / defendant No.2 in O.S.Nos.14 and 15
of 2015. Likewise, A.S.Nos.314 and 315 of 2022 have been filed by defendant
No.1 / M/s. Sree Mangalam Business Ventures arising out of O.S.No.14 of 2015
and O.S.No.15 of 2015. Both the said suits stood decided along with a common
judgment that was passed on 23.03.2018 by the VI Addl. District Judge at
Siddipet. There were three suits which were decided together vide the impugned
common judgment.
4. In addition to the aforesaid four Appeal Suits, there is one Civil Revision
Petition also tagged to this batch i.e. C.R.P.No.3356 of 2023 which has been
filed by the plaintiff against the order dated 13.07.2023 passed by the Principal
District Judge at Medak in I.A.No.433 of 2022 in O.S.No.13 of 2015.
5. Vide the impugned order dated 13.07.2023, the Trial Court allowed the
condone delay petition filed by the defendants in O.S.No.13 of 2015 seeking for
setting aside of the ex parte judgment and decree passed in O.S.No.13 of 2015,
dated 23.03.2018. The date on which the VI Addl. District Judge had decided
the three suits O.S.Nos.13, 14 and 15 of 2015 in favour of the plaintiffs therein
and allowed the suit for declaration of title, recovery of possession and mesne
profits, in all the three civil suits decided by a common judgment, the Trial
Court has declared the plaintiffs to be the absolute owner of the suit schedule
property and directed the defendants in the three suits to vacate the suit schedule
property.
6. To set the facts straight, the brief averments in respect of the three suits
decided vide the impugned common judgment are, insofar as O.S.No.13 of
2015 is concerned, it is the contention of the plaintiff that he had purchased the
suit schedule property admeasuring Ac.2-00 guntas in Survey No.296 vide
registered sale deed bearing document No.4296 dated 24.03.2006 from one
Mrs. Vijayalaxmi, who in turn, had purchased the same from one
Mrs. Nagamma, her sons and grandchildren vide registered sale deed-cum-
GPA, bearing document No.3091 of 2003, dated 09.07.2003. The claim of the
plaintiff was also on the strength of mutation proceedings which stood decided
and the name of plaintiff as the pattedar of the said property was reflected in the
revenue records and also in the pattedar pass book.
7. So far as O.S.No.14 of 2015 is concerned, the claim of the plaintiff
therein again was that he had purchased the suit schedule property admeasuring
Ac.0-16 guntas in Survey No.296 and also Ac.1-24 guntas in Survey No.297
vide registered document bearing No.4298 of 2006 executed on 24.03.2006
from Mrs. Nagamma, her sons and grandchildren through registered sale
agreement-cum-GPA holder K. Ravi Shankar Srinivas (plaintiff in O.S.No.13 of
2015) and here also the contention of the plaintiff was that the sale has been
accepted by the revenue authorities and who have in mutation proceedings
recorded the name of the plaintiff as the pattedar and have issued the pattedar
passbook also in favour of the plaintiff.
8. So far as O.S.No.15 of 2015 is concerned, it was the contention of the
plaintiff that she had also purchased the suit schedule property admeasuring
Ac.2-00 guntas in Survey No.296 vide registered sale deed bearing document
No.4297 of 2006 executed on 24.03.2006 from Mrs. Nagamma, her sons and
grandchildren vide registered sale agreement-cum-GPA holder Smt. Sumana.
The plaintiff also made another purchase of Ac.5-39 guntas situated in Survey
Nos.296 and 297 vide registered document bearing No.884 of 2008 executed on
23.04.2008 from Mrs. Nagamma, her sons and grandchildren. In all these
purchases also the revenue authorities after conclusion of the mutation
proceedings had recorded the name of the plaintiff as the pattedar and pattedar
passbook was also issued.
9. The plaintiff in O.S.No.15 of 2015 had made a further sale of land
admeasuring Ac.1-12 guntas out of the purchase of aforementioned Ac.5-39
guntas which the plaintiff had purchased from Mrs. Nagamma, her sons and
grandchildren in Survey No.296. The plaintiff had sold the said property to one
Mrs. Koruparti Kousalya and others through a registered sale deed bearing
document No.1218 of 2012 which was executed on 25.08.2012. According to
the plaintiff, after the sale of Ac.1-12 guntas to Mrs. Koruparti Kousalya and
others, the plaintiff had land admeasuring Ac.4-27 guntas out of Ac.5-39 guntas
she had purchased earlier.
10. In all the aforesaid three civil suits, the defendants either remained absent
and were set ex parte from the beginning or some of the defendants entered
appearance, but did not participate in the proceedings and thereafter were
proceeded ex parte. As such, the ex parte judgment and decree stood passed on
23.03.2018.
11. The dispute, in fact, arose when a company named M/s.Satya Steel Strips
Pvt. Ltd. went in for liquidation in a proceeding before the Company Court in
C.P.No.23 of 1988. When the said company went in for liquidation, it is their
property which was subjected to sale by way of an auction. M/s.Satya Steel
Strips Pvt. Ltd. is said to have purchased Ac.23-00 guntas in Survey Nos.298
and 299 abutting land in Survey Nos.296 and 297 which is the Survey number
from which the plaintiffs had purchased the property from their vendors. The
dispute arouse when land admeasuring Ac.5-30 guntas and Ac.3-10 guntas in
Survey Nos.296 and Ac.2-20 guntas in Survey No.297 was given as a security
by one Mrs. Satyavathi in favour of a bank for the liability of the company
which went in for liquidation i.e. M/s. Satya Steel Strips Pvt. Ltd.
Subsequently, the said property is said to have been intruded upon and
encroached by the people associated with Mrs. Satyavathi.
12. It was the contention of the plaintiffs that M/s. Satya Steel Strips Pvt. Ltd.
had purchased Ac.23-00 guntas of land in Survey Nos.298 and 299 and those
had got nothing to do with the plaintiff's property which stood in Survey
Nos.296 and 297.
13. Subsequently, the owners of M/s. Satya Steel Strips Pvt. Ltd. have also
purchased certain portion of land in Survey Nos.296 & 297, i.e., Ac.5-30 guntas
in Survey No.296 and Ac.5-00 guntas in Survey No.297. Both these properties
have been purchased by M/s. Satya Steel Strips Pvt. Ltd. from Mrs. Nagamma,
her sons and grand children. The said properties are situated on the eastern part
of Survey Nos.296 & 297. The said sale was executed as early as on
23.12.1977. After the sale of the aforesaid two properties to Mr. Lokhanday N.
Sateesh and Mr. Babu Rao, the said Mrs. Nagamma, her sons and grandchildren
still had in possession Ac.18-38 guntas of land left with them, i.e., Ac.9-31
guntas in Survey No.296 and Ac.9-07 guntas in Survey No.297, totaling to
Acs.18-38 guntas.
14. Though the original owner of this chunk of land seems to be the same,
but all these properties were sold to different entities and persons at different
point of time. However, it is only when there appear to be certain
encroachments made by M/s. Satya Steel Strips Pvt. Ltd. and its directors that
led to filing of suit by one Mrs. Nagamma, her sons and her grandchildren
which was numbered as O.S.No.72 of 1984, which was again re-numbered as
O.S.No.7 of 1987 later on. The said suit was filed for declaration of title,
recovery of possession, removal of barbed wire fencing which were put by M/s.
Satya Steel Strips Pvt. Ltd. and their directors.
15. Meanwhile, M/s. Satya Steel Strips Pvt. Ltd. went in for liquidation and a
company application was filed before the Company Court which was registered
as C.P.No.23 of 1988. According to Mrs. Nagamma (plaintiff in O.S.No.7 of
1987) the land owned and possessed by them i.e. Ac.18-36 guntas in Survey
Nos.296 and 297 has got nothing to do with the company assets or the land
purchased by the director of the company namely Satyavathi, and the said land
had not been in any manner, has a collateral security with the bank from where
Satyavathi is said to have borrowed the loan.
16. Mrs. Nagamma, her sons and grandchildren subsequently sold away the
left over land with them to different persons, the details of which are reproduced
herein in the form of a table, viz.,
Sy. No. Extent Vendor Vendee Doc. No. &
[A=G] Date
296 0=16 Nagamma, her sons K. Sateesh 4298/06
& Grand Children 24-03-2006
297 1-24 Nagamma, her sons K. Sateesh 4298/06
& Grand Children 24-03-2006
296 2=00 Nagamma, her sons K. Vijaya Lakshim 4297/06
& Grand Children 24-03-2006
296 5=39 Nagamma, her sons K. Vijaya Lakshim 884/08
297 & Grand Children 23-04-2006
296 2=00 Nagamma, her sons K. Ravi Shankar 4296/06
& Grand Children Srinivas 24-03-2006
296 0-12 Nagamma, her sons K.V.K. Rama Rao 885/08
& Grand Children 23-04-2006
297 6-27 Nagamma, her sons K.V.K. Rama Rao 885/08
& Grand Children 23-04-2006
17. Since the purchase of the land was made by the plaintiff (in O.S.No.15 of
2015), i.e., Mrs. K. Vijaya Lakshmi, she had taken possession of the said
property, got an electricity transformer installed and had been cultivating the
said land continuously without any obstacle and hurdle from any corner till the
property was said to be put to auction pursuant to the liquidation proceedings
initiated against M/s. Satya Steel Strips Pvt. Ltd. Meanwhile, there was also a
document which was executed between the plaintiff (in O.S.No.15 of 2015),
i.e., Mrs. K. Vijaya Lakshmi, along with her vendor, Mrs. Nagamma and her
sons in respect of a right to passage on the southern side of Survey No.296
which gives access to the plaintiff's property.
18. Surprisingly, the judgment and decree passed in O.S.No.7 of 1987, dated
27.02.1998, has not been questioned by the judgment-debtor / defendants in the
said case any further, and the said judgment and decree has thus attained finality
insofar as the title and possession over the same belonged to plaintiff (in
O.S.No.15 of 2015), i.e., Mrs. K. Vijaya Lakshmi. Initially, the official
liquidator had subjected the said land for auction pursuant to the liquidation
proceedings initiated by the State Bank of India to recover their money which
they had lent to M/s. Satya Steel Strips Pvt. Ltd. Thereafter, subsequent on an
application filed on behalf of Mrs. K. Vijaya Lakshmi before the Company
Court, highlighting the judgment and decree dated 27.02.1998, the said
decreetal property was released from the liquidation proceedings and it fell back
in possession to the plaintiff (in O.S.No.15 of 2015), i.e., Mrs. K. Vijaya
Lakshmi. The official liquidator later challenged the decision of the Company
Court releasing the property vide C.A.No.882 of 1999 and the Company Court
again ordered the said property to be returned to the company considering the
earlier order to have been erroneously passed. Meanwhile, one Mr. Susheel
Kumar Hora (defendant No.7 in O.S.No.7 of 1987) had filed a First Appeal
against the judgment and decree dated 27.02.1998 which was registered as
A.S.No.863 of 1998, and later on, the said appeal stood transferred to the
Company Court at the request of the appellant. Thus, there were two appeals
filed by the appellant, i.e., A.S.No.836 of 1998 and A.S.No.858 of 1998. Both
these appeals were also dismissed on 15.04.2009 and later on the appellant filed
a review petition which stood allowed to the extent that while dismissing the
first appeal, the affected parties were granted liberty to approach the Company
Court for an appropriate relief. Later on, Mrs.Nagamma, vendor of Mrs.K.
Vijaya Lakshmi, had filed certain petitions before the Company Court which
was registered as Company Petition No.243 of 2010 and Company Petition
No.364 of 2010 and Company Petition No.410 of 2010 whereby they were
declared owners of Ac.18-38 guntas and had also sought back the release of the
land from Mr.Susheel Kumar Hora. Meanwhile, the official liquidator subjected
the land belonging to M/s. Satya Steel Strips Pvt. Ltd., i.e., Ac.23-00 guntas
situated in Survey Nos.298 and 299 to auction, and in addition Ac.5-30 guntas
situated in Survey No.296 and owned by Mrs. Satyavathi has been pledged as
security to the bank. This Ac.5-30 guntas in Survey No.296 is what has been
purchased by M/s.Sree Mangalam Business Ventures, being the highest bidder
under a registered Sale Deed bearing document No.165 of 2010, dated
08.02.2010. The Company Court meanwhile tried to determine the exact piece
of land which was pledged as security for the company's loan in Survey
Nos.296 and 297 which was in possession with the official liquidator.
Meanwhile, the Company Court vide order dated 28.01.2015, in response to a
Company Application No.364 of 2010 preferred by Mrs. Nagamma and her
family members, passed the following order, viz.,
"If in the process, the auction purchaser has come into possession of any
land, in excess of Ac.28-30 guntas belonging to the applicants, the same
has nothing to do with the company petition. As such, "if the applications
assert their title to the said extent of Ac.18-38 guntas land which does not
form part of Ac.28-30 guntas and with reference to which there is no
dispute, they shall be free to initiate appropriate legal proceedings in
respect thereof".
19. Finally, the Company Court also ruled that it was Mrs.K. Vijaya Lakshmi
and her family members who had purchased different portions of land through
duly executed registered sale deeds from their vendor, i.e., the original owner,
viz., Mrs.Nagamma, her sons and grandchildren. Having full ownership rights
over the said property which was allegedly pledged as collateral security with
the bank by one Mrs. Satyavathi, the Director of M/s. Satya Steel Strips Pvt.
Ltd., the Company Court ordered granting of possession to Mrs.K. Vijaya
Lakshmi (the plaintiff in O.S.No.15 of 2015) of the suit schedule property
purchased by her. The auction purchaser, viz., M/s. Sree Mangalam Business
Ventures, is owned by the uncle of the appellant in A.S.No.199 of 2021 and
A.S.No.200 of 2021, and the said M/s. Sree Mangalam Business Ventures is the
appellant in A.S.Nos.314 of 2022 and 315 of 2022.
20. The aforesaid facts show a direct nexus and a close relationship between
the appellant in A.S.No.199 of 2021 and A.S.No.200 of 2021 with the appellant
in A.S.Nos.314 and 315 of 2022. It is nobody's case that respondent /
defendant No.2 in A.S.No.199 of 2021, i.e., Mr. Mohan Lal, being not aware of
the judgment and decree dated 27.02.1998, passed in O.S.No.7 of 1987, as
Mr. Mohan Lal was also a petitioner in execution proceedings initiated by the
decree holder (Mrs. Nagamma), and Mr. Mohan Lal himself has preferred
execution proceedings, i.e., E.A.No.17 of 1999.
21. Likewise, in O.S.No.13 of 2015, O.S.No.14 of 2015 and O.S.No.15 of
2015, when summons were issued to the parties, and in spite of proper service
of summons, the defendant No.1 (appellant in A.S.Nos.314 and 315 of 2022),
i.e., M/s. Sree Mangalam Business Venture, did not thought it fit to contest the
case. So also, when defendant No.2, i.e, Mr. Mohan Lal in the said appeals, did
not enter appearance after issuance of summons, a notice by way of substitute
service through paper publication in the daily English newspaper (Hyderabad
Edition) was effected duly intimating the date of appearance before the Trial
Court, and even then there was no representation on behalf of the said defendant
No.2. Therefore, the said defendant No.2 was set ex parte by the Trial Court
and the Trial Court proceeded to decide the three suits and finally vide its
impugned judgment dated 23.03.2018, allowed the above three suits in favour
of the plaintiffs. It is this judgment which is under challenge in the instant four
appeals, i.e., (two preferred by Mr. Rahul Agarwal - A.S.Nos.199 and 200 of
2021, who claims himself to be the legal heir of defendant No.3 in O.S.No.13 of
2015); and the defendant No.1 in O.S.No.14 and 15 of 2015 has preferred two
appeals, viz., A.S.Nos.314 and 315 of 2022.
22. So far as A.S.Nos.199 and 200 of 2021 are concerned, the primary
challenge is to the judgment and decree passed in O.S.Nos.14 and 15 of 2015.
The defendant No.2, i.e., Mr. Mohan Lal in the said suits had subsequently died
on 07.06.2017. After his death, the plaintiffs in the said two suits did not take
necessary steps for impleading the legal heirs on record and, as such, the
judgment and decree insofar as the defendant No.2 is concerned becomes a
nullity and the same is an order which otherwise becomes void. Learned
counsel for the appellants contended that the plaintiffs did not even thought it
proper to take appropriate order of exemption as is required under Order 22
Rule 4(iv) of the Civil Procedure Code, 1908 (for short, 'CPC') so far as
exemption from substituting the legal heirs of the deceased defendant No.2 in
the above two suits. Therefore, in the absence of any such exemption and on
this ground also, judgment and decree dated 23.03.2018 which is under
challenge in the instant appeals, would not be sustainable.
23. The contention of the learned counsel for the appellants was that the
judgment and decree passed by the Trial Court is also liable to be interdicted on
the ground that the plaintiffs had not produced before the Court the order passed
by the Senior Civil Judge, at Siddipet in E.A.No.17 of 1998 in E.P.No.27 of
1998 in O.S.No.7 of 1987 whereby the executing Court had restored the
possession of the said deceased, Mohan Lal, over the suit schedule property. It
was the further contention of the learned counsel for the appellants that by way
of the order passed in E.A.No.17 of 1998 in E.P.No.27 of 1998 in O.S.No.7 of
1987, there was an implicit ruling in favour of the deceased (defendant No.2)
insofar his title over the property that he had purchased from one Mr. P.
Subramanyam Raju vide registered sale deed bearing document No.352 of
1989, dated 27.01.1989.
24. So far as the appellant in A.S.Nos.314 and 315 of 2022, i.e, M/s.Sree
Mangalam Business Venture is concerned, the contention of the learned counsel
for the appellants in these two appeals primarily was that the judgment and
decree dated 23.03.2018 in O.S.Nos.14 and 15 of 2015 was one which was
passed in a mechanical manner without proper appreciation of the legal position
as it stood. Learned counsel for the appellants further contended that the Trial
Court ought not to have passed the judgment and decree without having
thoroughly gone into the details of the appellants pertaining to the title rights of
the appellants are concerned. He further contended that the Trial Court ought to
have considered the aspect of the principle of res judicata being applicable in
the said facts of the case as the matter already stood adjudicated between the
parties in C.P.No.364 of 2010, dated 28.01.2015 and also the judgment and
decree passed in A.S.Nos.836 of 1998 and 858 of 1998 which were dismissed
on 15.04.2009. According to the learned counsel for the appellants, the
plaintiffs have never questioned the right of the company, i.e., M/s. Satya Steel
Strips Pvt. Ltd. insofar as the property which they have purchased insofar as
Ac.28-00 guntas from their vendors.
25. O.S.No.7 of 1987 stood decreed in favour of the plaintiff Nagamma and
her sons vide judgment and decree dated 27.02.1988 so far as land admeasuring
Ac.9-31 guntas in Survey No.296 and land admeasuring Ac.9-07 guntas in
Survey No.297, totaling Ac.18-38 guntas. An execution petition flowing from
the said judgment was filed which was registered as E.P.No.27 of 1988. The
said execution petition also stood allowed and the decree holder got back the
possession of Ac.11-39 guntas in Survey Nos.296 and 297 on 06.04.1999
through the Court bailiff. The said Ac.11-39 guntas was in illegal possession of
M/s. Satya Steel Strips Pvt. Ltd.
26. After receiving the delivery of the said property, Mrs. Nagamma and her
sons sold the property to the K.Vijaya Lakshmi (plaintiff in O.S.No.15 of 2015).
However, it was also not the contention of the learned counsel for the appellants
that the company is in occupation or possession of any land in excess of
Ac.28-30 guntas. Thus, the decree so passed in favour of respondent No.1 was
liable to be set aside / quashed.
27. On the contrary, the plaintiff in O.S.No.15 of 2015, viz., Mrs. K. Vijaya
Lakshmi and respondent No.1 in the two appeals, viz., A.S.Nos.200 and 314 of
2021, have taken a categorical stand that they had purchased their respective
piece of land under a separate registered sale deed from their vendor, i.e.,
Mrs.Nagamma, her sons and her grandchildren. According to the plaintiffs,
there has been no challenge at any point of time to the sale deeds that were
executed in favour of the plaintiffs by the vendor. According to the plaintiffs,
subsequent to the sale deeds being executed in their favour, they have taken
possession of the said property and are in peaceful possession of the same and
have also been cultivating the said land uninterruptedly. They have also got
themselves an electrical transformer installed from the concerned electricity
board with the aid of which they have been cultivating the said land. It was also
the contention of the plaintiffs that after having obtained a decree, the vendor of
the plaintiffs, viz., Mrs.Nagamma, her sons and her grandchildren in O.S.No.7
of 1987 which was decided on 27.02.1998, there was no impediment so far as
Mrs.Nagamma executing the sale deeds in favour of the plaintiffs, more
particularly for the reason that the said judgment in O.S.No.7 of 1987, dated
27.02.1998, has gone unchallenged. Lastly, it was contended that none of the
respondents in the three suits, viz., O.S.No.13, 14 and 15 of 2015 filed by the
plaintiffs, in spite of proper service effected on them, never thought it fit to
enter appearance and contest the case on merits. None of the parties also
thought it fit to even intimate the above plaintiffs in the above three suits or the
Trial Court in respect of the death of defendant No.2, viz., Mr. Mohan Lal, in
O.S.Nos.14 and 15 of 2015. Even otherwise, the said defendant No.2 in the
aforesaid two suits has already been proceeded ex parte on 11.12.2016 itself
when the said defendant No.2 failed to enter appearance even after substitute
mode of service of notice had been pressed upon and also paper publication also
having been made in one of the daily newspapers, Hyderabad edition.
28. In the light of the aforesaid facts and circumstances of the case, the
impugned judgment and decree passed by the Trial Court in O.S.No.13 of 2015,
dated 23.03.2018 does not warrant interference by this Court.
29. As regards, Civil Revision Petition No.3356 of 2023 is concerned, the
same is one which has been filed by the plaintiff in O.S.No.13 of 2015
challenging the order passed by the Trial Court in a proceeding under Order IX
Rule 13 of CPC whereby vide the impugned order dated 13.07.2023 passed in
I.A.No.433 of 2022 in O.S.No.13 of 2015, the condone delay petition filed
under Section 5 read with Section 151 of Civil Procedure Code, 1908 stood
allowed so far as condoning the delay which has arisen in filing the petition
under Order IX Rule 13 by the defendants / petitioners in O.S.No.13 of 2015.
The said Revision has been filed by the Revision Petitioner, viz., Mr.
Ravishankar Srinivas, under Section 115 of CPC. However, while hearing the
Section 5 petition, i.e., I.A.No.433 of 2022 in O.S.No.13 of 2015, the Trial
Court has not properly gone through the proceedings in O.S.No.13 of 2015
insofar as the service of notice upon the defendants is concerned and the steps
taken by the Trial Court before the defendants were proceeded ex parte.
According to the said plaintiff, there was sufficient proof available on record to
show that the defendants in O.S.No.13 of 2015 have been duly served of the
notice / summons issued by the Trial Court. According to the plaintiff, once
when there is an endorsement of the summons issued having not claimed or the
notice or his agency refusing to take delivery of the notice, it has to be
presumed that the notices have been duly served and service to have been
effected upon the noticee. In the said circumstances, if the Trial Court has
proceeded ex parte, it cannot be said to be in any manner arbitrary or contrary to
law, and after such endorsements being made on the notices issued or where
even after proper notice have been published in the daily newspaper having
wide circulation in the locality where the defendants were residing and when
there was no representation, the Trial Court is left with no other option but to
proceed ex parte so as to avoid delay tactics being adopted by the defendants.
30. According to the appellants, the Trial Court in fact had taken into account
the practice and procedure under the law so far as service of notice is concerned.
Therefore, the ex parte proceedings drawn by the Trial Court cannot be found
fault with. It was also the contention of the appellants that there was ample
material on record to show that the defendants were well aware of the litigation
over the said suit schedule property and that the defendants deliberately did not
contest the same with an intention of protracting the matter by approaching the
Court at a later stage and it was in this context that the present Section 5 petition
has been filed in respect of the application under Order IX Rule 13 of CPC.
According to the appellants, the Trial Court before allowing the Section 5
petition, ought to have minutely perused the proceedings that had transpired
right from O.S.No.7 of 1987 and the subsequent execution proceedings and the
three suits filed by the plaintiffs herein which again stood decided against the
defendants and also the proceedings before the Company Court, i.e., in
C.A.No.364 of 2010, all of which would clearly indicate that the defendants
have any right, title or interest over the suit schedule property so far as
O.S.No.13 of 2015 is concerned. It was also the contention of the appellants
that there was even a notice issued from the office of the Tahsildar,
Manoharabad in the year 2018 itself for correction of the land so far as the sale
deed that stood in favour of Mrs. K.Vijaya Lakshmi, the mother of plaintiff in
O.S.No.15 of 2015, which again would clearly indicate that the defendants in
O.S.No.13 of 2015 were aware of the order passed by the Trial Court in the
Civil Suit.
31. Per contra, the learned counsel for the respondents contended that the
defendants in O.S.No.13 of 2015 have not been properly served notice and that
the so-called paper publication with an endorsement "not claimed" are all
documents which have been managed by the plaintiffs in obtaining the same
with a clear intention of having the proceedings drawn ex parte and getting an
ex parte decree against them. He further contended that it was only when the
notice was issued by them in E.A.No.6 of 2019 that they came to know that the
ex parte proceedings / ex parte judgment and decree. According to the
defendants, they had got the sale deed executed in their favour in respect of the
suit schedule property on 14.06.2012 executed by one Mrs. K.Lingamma, w/o.
Mr. Chandraiah, who is son of original owner, Mr. K. Shivaiah and
Mr. Chandraiah was the person who was also the recorded pattedar of the suit
schedule property and Mrs.K. Lingamma was the wife of the said
Mr.Chandraiah. The said sale deed was done with the consent of all the parties
to the suit, and also with the consent of the family members. He further
submitted that subsequent to the sale deed, mutation proceedings have also been
drawn and the names also stood mutated in their favour. It was thereafter that
the defendant No.1 had gifted the property to defendant No.2 and also sold part
of the remaining property in favour of defendant No.3. All these facts were not
properly brought to the notice of the Trial Court and the Trial Court proceeded
ex parte. He therefore prayed that the order dated 13.07.2023, passed in
I.A.No.433 of 2022 in O.S.No.13 of 2015, the condone delay petition filed
under Section 5 read with Section 151 of CPC is liable to be set aside. He
further contended that as of now no prejudice would be caused to the plaintiffs
as it is only a delay petition which had been condoned. However, the original
petition under Order IX Rule 13 is still to be adjudicated on merits and can still
be looked into by the Trial Court in the course of deciding the Order IX Rule 13
petition.
32. So far as A.S.Nos.199 and 200 of 2021 are concerned, the same has been
filed by one Mr. Rahul Agarwal, who claims to be the legal heir of defendant
No.2 in O.S.Nos.14 and 15 of 2015. There is no material made available or
brought on record, firstly to prove that he is the legal heir of the deceased
Mohan Lal. Likewise, there is also no material on record to show that the
service of notice issued in the two suits O.S.Nos.14 and 15 of 2015 was not
effectively served upon the deceased Mohan Lal. There is also nothing on
record to show that the ex parte proceedings drawn by the Trial Court after the
issuance of notice, so also substitute service being made by paper publication
was in any manner defective or technically wrong in accordance with the
provisions of CPC.
33. The fact which is also relevant to be considered at this juncture is that the
deceased, Mohan Lal, had already been proceeded ex parte much before the
date of his death on 07.06.2017. Given the fact that the deceased, Mohan Lal,
had already been proceeded ex parte much before his date of death itself, the
lack of substitution of the deceased, Mohan Lal, could now only be a procedural
irregularity and it would not automatically invalidate an ex parte judgment
unless the legal heirs of the deceased, Mohan Lal, were able to clearly produce
strong cogent evidence of the notice issued in the two suits O.S.Nos.14 and 15
of 2015 having not been effectively served or noticed while the deceased was
alive. Hence, in the absence of any information or intimation in respect of the
death of the deceased, if the Trial Court proceeds with the case, where the
defendants are proceed ex parte, particularly when they have failed to appear
and contest the case on merits, non-substitution of the deceased would by itself
not render the proceedings null and void. The fact that the deceased, Mohan Lal,
had already been proceeded ex parte much before his date of death and the other
defendants also were proceeded ex parte, there is no occasion for the plaintiffs
to have taken steps for substitution.
34. As regards the other contention of the plaintiffs of the Trial Court not
taking into consideration the order passed in E.A.No.17 of 1998 in E.P.No.27 of
1998 arising out of O.S.No.7 of 1987, what needs to be considered / appreciated
is the fact that these were facts which ought to had been brought to the notice of
the Trial Court in the course of trial, particularly for the reason that O.S.No.7 of
1987 was not a suit that was instituted at the behest of the plaintiffs in
O.S.Nos.14 and 15 of 2015 when summons and notices were issued to the
defendants in O.S.Nos.14 and 15 of 2015, the once in which the ex parte
judgment has been passed and which is under challenge in these appeals.
Another fact which needs appreciation by this Bench is that the order passed in
E.A.No.17 of 1998 in E.P.No.27 of 1998 in O.S.No.7 of 1987 was well within
the knowledge and notice of the deceased, Mohan Lal. There is ample proof to
show that there was effective service of summons made upon the deceased
while he was alive and before he was proceeded ex parte and much before the
ex parte judgment was passed in O.S.Nos.14 and 15 of 2025. Yet if the
deceased has chosen not to contest the case on merits and permitted the Trial
Court to proceed ex parte, the order so passed by the Trial Court cannot be
found fault with. What was necessary to be considered is the fact that who could
have brought the details of the order passed in E.A.No.17 of 1998 in E.P.No.27
of 1998 on record or to the notice of the Trial Court when the suit was being
contested between the plaintiffs and the defendants and, defendant No.2 was the
petitioner in E.A.No.17 of 1998 which is said to have been decided in his
favour. It was he who could have contested the case and ought to have brought
to the notice and knowledge of the Court hearing the trial so far as O.S.Nos.14
and 15 of 2015 is concerned and it appears that the defendants deliberately
stayed away from the proceedings before the Trial Court.
35. Further, on a plain reading of A.S.No.199 of 2021, so also A.S.No.200 of
2021, there does not seem to be any material or averment made by the plaintiff
establishing himself to be the legal heir of the deceased, Mohan Lal. Further,
from the proceedings, it also reflects that the plaintiff on an earlier occasion had
filed a petition vide I.A.No.51 of 2019 in O.S.No.14 of 2015 and also filed
I.A.No.52 of 2019 in O.S.No.15 of 2015 under Section 5 of the Limitation Act
to condone the delay of 350 days in filing the petition for setting aside of the
judgment and decree dated 23.03.2018 in O.S.No.14 of 2015 and O.S.No.15 of
2015. These I.As. stood dismissed on 15.11.2019. From 15.11.2019, till August,
2021, when the instant appeals were filed, the appellant does not seem to have
shown any interest in between, in challenging the ex parte judgment and decree
dated 23.03.2018.
36. Another aspect which is evident from the pleadings and evidence brought
on record, is that, the sale deed executed in favour the three plaintiffs in
O.S.Nos.13, 14 and 15 of 2015 have also not been subjected to challenge before
any competent Court of law, and without a challenge to the said sale deed and in
the teeth of the judgment and decree dated 27.02.1988 in O.S.No.7 of 1987, we
are of the considered opinion that the appellant has not made out any strong
case calling for an interference to the impugned order passed by the Trial Court.
A.S.Nos.199 and 200 of 2021 filed by Mr. Rahul Agarwal deserve to be
dismissed and are accordingly dismissed.
37. Likewise, A.S.Nos.314 and 315 of 2022 are concerned, a plain reading of
the pleadings and the grounds raised in the memo of appeal, the appellant
M/s.Sree Mangalam Business Venture seem to have questioned the ex parte
judgment and decree dated 23.03.2018 passed in O.S.Nos.14 and 15 of 2015
purely on merits. Not once has the appellant questioned the ex parte
proceedings initiated by the Trial Court at the first instance on the ground of
summons / notices not having effectively been served upon the appellant.
Neither has the appellant at any point of time in the pleadings questioned the ex
parte judgment and decree passed. Instead the appellant has been vehemently
arguing the case for defending himself on merits alone. The fact that the
appellant does not seem to have been aggrieved of the manner in which the
Trial Court has proceeded ex parte and have passed an ex parte judgment and
decree by itself gives a strong indication of the notices having been duly served
upon the appellants. In spite of proper service having been effected upon the
appellant, if the appellant has chosen not to contest the case at all, rather
permitted the Trial Court to proceed ex parte knowing fully well of the
proceedings drawn by the Trial Court, the appellant is not justified in
challenging the impugned judgment and decree at this belated stage. The
impugned judgment and decree is one which was passed on 23.03.2018, and the
instant appeals are one which has been filed only in November, 2022. No
justifiable grounds have also been raised seeking condonation of delay.
38. Perusal of the grounds raised, except for the grounds that have been
raised by the appellant in A.S.Nos.199 and 200 of 2021, the appellant has not
been able to show a single ground to defend his rights over the suit schedule
property. The fact that the appellant has not challenged the Trial Court initiating
ex parte proceedings and passing ex parte judgment and decree so far as proper
service is concerned, this Bench is compelled to presume that there was
effective and proper service of notice made upon the appellant and that he
deliberately chose not to contest the case on merits before the Trial Court. Thus,
the appellant at this belated stage cannot be permitted to agitate the impugned
judgment and decree on merits without any bona fides insofar as not contesting
the case on merits in spite of proper service of notice. In view of the same,
A.S.Nos.314 and 315 of 2022 also deserved to be and are accordingly
dismissed.
39. As regards the Civil Revision Petition No.3356 of 2023, the same has
been filed by Mr. K.Ravi Shankar Srinivas (plaintiff in O.S.No.13 of 2015)
being aggrieved of the order passed by the Principal District Judge at Medak,
in I.A.No.433 of 2022 in O.S.No.13 of 2015, dated 13.07.2023. I.A.No.433 of
2022 is a petition filed by the defendants under Section 5 of the Limitation Act
to condone the delay of 466 days in support of a petition filed under Order IX
Rule 13 of CPC seeking for setting aside of the ex parte judgment and decree in
O.S.No.13 of 2015, decided on 23.03.2018.
40. Vide the impugned order dated 23.03.2018, the Trial Court allowed the
aforesaid I.A. and ordered for posting the Order IX Rule 13 petition for further
hearing.
41. O.S.No.13 of 2015 was a suit filed for declaration of title, recovery of
possession and mesne profits. Notices were issued to all the three defendants, all
of whom were close relatives of each other. Summons and notices to defendant
Nos.2 and 3 were duly served, but they chose not to appear before the Trial
Court and the Trial Court accordingly proceeded ex parte against defendant
Nos.2 and 3. Summons issued to defendant No.1 could not be served
effectively, therefore, on an appropriate prayer, notices by way of substitute
service was ordered and notice was issued by way of publication in a daily
newspaper. In spite of publication being made in a daily newspaper, on
11.12.2016 defendant No.1 remand absent and therefore the Principal District
Judge proceeded ex parte against defendant No.1 as well, and in the absence of
any rebuttal by way of Written Statement or evidence by defendants, the
Principal District Judge proceeded and passed the ex parte judgment and decree
on 23.03.2019.
42. Subsequently, execution proceedings were initiated, which was registered
as E.P.No.6 of 2019 and notices were also issued. It is then that the I.A.No.433
of 2022 was filed by the defendants to condone the delay of 466 days in filing
the petition to set aside the judgment and decree passed in O.S.No.13 of 2015.
The Trial Court took up the Section 5 petition first, and went on to decide the
same and allowed the said petition.
43. It is this condonation of delay in filing the Order IX Rule 13 petition
which is under challenge in the instant Civil Revision Petition.
44. The contention of the petitioner was that the Trial Court has allowed the
Section 5 petition in a mechanical manner without proper appreciation of facts
and circumstances of the case, more particularly the material which had come
before him while proceeding ex parte against the defendants. The contention of
the petitioner also was that the Trial Court at the first instance had properly
proceeded ex parte against defendant Nos.2 and 3 whose notices had come back
with an endorsement "not claimed". According to the petitioner, once when the
notices were issued and is returned with an endorsement "not claimed", the only
presumption that could have been drawn is the one which has been taken while
presuming that the notices have been properly or duly served upon the
defendant Nos.2 and 3.
45. The petitioner contended that the finding of the Trial Court, at the first
instance, so far as the presumption of the notices having been served could not
had been as a matter of routine interfered with only on mere asking of it. Rather,
the defendants ought to have produced cogent strong material to show that
under no circumstances the notices could had been served upon them and they
bonafidely could not appear before the Trial Court as the notices were not
served on them. It was also contended that the proceedings drawn by the Trial
Court while proceeding ex parte against the defendants was also inconformity
with the provisions of the General Clauses Act.
46. According to the petitioner, none of the defendants in their I.A. have been
able to show that the notices those were issued with an endorsement "not
claimed" was not at all delivered at their doorsteps or the contention of
defendant No.1 that he was out of station when the notices were served also has
not been established by any substantive proof to show their bonafides in not
appearing before the Trial Court during the course of the proceedings of original
suit for declaration of title and mesne profits.
47. The contention of the petitioner also was that even otherwise the
defendants were well aware of the suit and the decree passed, as subsequently,
the mother of the petitioner Mrs. K.Vijaya Lakshmi, in fact had taken steps for
correcting all the entries in the revenue records so far as entering their name,
and at that stage also notices were issued which also would establish that they
were well aware of the civil suit and the ex parte judgment and decree passed in
the said suit.
48. According to the petitioner, another aspect which needs to be considered
by the Trial Court while considering the Section 5 petition was, what is the
explanation given by the defendants for the delay that has caused in filing the
Order IX Rule 13 petition, rather than proceeding to decide the merits of Order
IX Rule 13 petition itself while considering the condone delay petition.
According to the petitioner, in fact, what the defendants ought to have explained
in their Section 5 petition is not the merits of service of notice, but as on which
date they were made aware of the ex parte judgment and decree dated
23.03.2018 and what steps did they take immediately and how much delay was
thereby caused.
49. Thus, the petitioner prayed for setting aside of the impugned order dated
13.07.2023 so far as allowing the Section 5 petition.
50. Per contra, the respondents opposing the Civil Revision Petition
contended that it was only notices on the execution proceedings so served on
the defendants they came to know about the suit and the ex parte proceedings
drawn by the Trial Court and, since then, they took necessary steps and filed the
Order IX Rule 13 petition forthwith without any delay. As such, the order
passed by the Trial Court does not warrant any interference.
51. Having heard the contentions put forth on either side and on perusal of
records, particularly when we go through the order passed by the Trial Court,
we find that in fact the Trial Court has gone into the merits of the contentions
raised in Order IX Rule 13 petition while deciding the Section 5 petition. The
entire impugned order would go to show that there are discussions made so far
as the service of notice upon the defendants is concerned and the finding of the
Trial Court is that the service of notice has not been effectively served upon the
defendants. The Trial Court went on to hold that substitute mode of service i.e.
publication made in the daily newspaper is not to be considered as an effective
mode of service and thereby have allowed the Section 5 petition and condoned
the delay in approaching the Court under Order IX Rule 13.
52. Upon reading of the impugned order, we are of the firm view that the
Trial Court has proceeded to decide the Order IX Rule 13 petition itself while
deciding Section 5 petition. There is not much discussion on the delay that has
caused in filing of the Order IX Rule 13 petition. Rather, there is more of
discussion of whether the Order IX Rule 13 petition has been filed with
bonafides or not. The Trial Court went on to decide the entries made on the
summons issued to the defendants and also went on to decide the credibility of
publication made in the daily newspaper so far as defendant No.1 is concerned,
and allowed the petition.
53. After going through the contents of the impugned order, we are of
considered opinion that though the order reflects having condoned the delay of
466 days, but in fact, it is as good as allowing the Order IX Rule 13 petition.
The reason for such a conclusion by this Bench is on account of the elaborate
discussion made on the summons issued and the publication made, which are in
fact the contentions which are required to be considered while deciding the
Order IX Rule 13 petition, and not the Section 5 petition. After the findings
given in the Section 5 petition, we do not find any good reason left for any
Court hearing the Order IX Rule 13 petition in allowing the same. In other
words, with the said finding given in Section 5 petition while condoning the
delay, no Court would not be in a position to reject the Order IX Rule 13
petition.
54. Therefore, we are of considered opinion that the impugned order for the
reason that it is touching the merits of the Order IX Rule 13 petition, rather than
deciding the condone delay petition in filing the Order IX Rule 13 petition
deserves to be and is accordingly set aside / quashed. The instant Civil Revision
Petition to the aforesaid extent stands allowed. The matter stands remitted back
to the Principal District Judge at Medak to reconsider the Section 5 petition
strictly considering the delay that has arisen in filing the Section 5 petition and
thereafter proceed to decide the Order IX Rule 13 petition if the need so arises.
Since we have set aside the impugned order dated 13.07.2023, we leave it open
for the Principal District Judge at Medak to decide the Order IX Rule 13
petition altogether afresh without being in any manner influenced by any of the
observations made in the impugned order dated 13.07.2023.
55. In the conclusion:-
(a) A.S.Nos.199 and 200 of 2021 & A.S.Nos.314 and 315 of 2022 are
dismissed; and
(b) C.R.P. No. 3356 of 2023 stands allowed to the extent mentioned in
paragraph No. 54 of this common judgment.
56. As a sequel, miscellaneous applications pending if any, shall stand
closed. However, there shall be no order as to costs.
________________
P.SAM KOSHY, J
___________________________________
NAMAVARAPU RAJESHWAR RAO, J
Date: 21.05.2025
GSD / Ndr
