CRP/1712/2015 of Koppu Sathaiah Vs Koppu Narsaiah on 31 December 2015

ORDER:

This Civil Revision Petition is filed questioning the orderdated 26.09.2014 in C.M.A.No.5 of 2011 passed by the PrincipalDistrict Judge at Nalgonda.

The facts in brief are that the petitioners are the defendantsin O.S.No.9 of 2004 on the file of Junior Civil Judge Court,Nalgonda. Respondents/plaintiffs filed the suit seeking permanentinjunction against the petitioners with respect to the land inSy.No.216 of Mada Yedavelli village, Narketpally Mandal,Nalgonda District over an extent of Ac.1-23 gts., The said suitwas decreed ex parte on 28.07.2004. Therefore the petitionersfiled I.A.No.246 of 2008 in O.S.No. 9 of 2004, on 28.12.2006, underOrder IX Rule 13 CPC read with 151 Code of Civil Procedure readwith Article 123 read with Section 5 of the Limitation Act, 1963seeking setting aside of the ex parte order. It is stated in theaffidavit filed in support of the I.A., that the suit summons were notreceived by them and as such they could not contest the suit anddecreeing of the suit ex parte came to their knowledge only on20.12.2006 and as such the petition is filed seeking to set asidethe ex parte decree within 30 days from the date of knowledge oft h e ex parte decree. The said I.A. was resisted by therespondents-plaintiffs specifically denying the averments that thepetitioners have not received any summons from the Court. TheCourt below after considering the record dismissed the I.A. TheOrder in I.A.No.246 of 2008 in O.S.No.9 of 2004 is carried inappeal before the Principal District Judge at Nalgonda in C.M.A.No.5 of 2011 and the same also came to be dismissed. Hence,the Civil Revision Petition.

Sri Rajamalla Reddy, learned counsel appearing for thepetitioners passionately pleads that the petitioners are the originalowners of the land, over which the respondents have obtained exparte decree, having purchased the same through registered saledeeds in 1982, 1989 and 1996 over an extent of total Ac.2-19

guntas. Merely because the suit was decreed ex parte withoutservice of notice on the deponents, inasmuch as the petitionersare original owners and are in possession of the suit scheduleland, the Courts below in refusing to set aside the ex parte decreecaused great injury to the rightful owners. The learned counsel forthe petitioners seeks indulgence of the Court stating that noprejudice as such would be caused if the ex parte decree is setaside and the trial Court is directed to try the suit after taking intoconsideration of the material and evidence that may be placed bythe respective parties. Learned counsel for the petitioners offersto compensate by way of costs to the respondents-plaintiffs. Learned counsel for the petitioners also placed reliance on thejudgment of the Supreme Court in Nahar Enterprises Vs.Hyderabad Allwyn Ltd., and Another[[1]].

The Civil Revision Petition is resisted by Sri Laxman Bachu,learned counsel appearing for the respondents-plaintiffs.

Conclusion

The case was heard at length, particularly considering thespecific plea of the learned counsel for the petitioners that thepetitioners are the owners of the property having purchased thesame through registered sale deeds in the years 1982, 1989 and1996, in the written statement also the petitioners had taken thesame plea. As can be seen from the record and also orders of theCourt below, the respondents-plaintiffs specifically pleaded thatthey are the purchasers of the land over an extent of Ac.1-23cents through registered sale deed No.910 of 1996, dated22.02.1996. The respondents-plaintiffs also in earlier occasionfiled O.S.No.185 of 1999 on the file of Junior Civil Judge, Nalgondaagainst the petitioners seeking injunction with respect to the property in Sy.No.215 and the said suit came to be decreed andthereafter the same was remanded back for fresh trial on accountof the orders of the Appellate Court and the said suit was pendingas on the date of O.S.No.9 of 2004. The boundaries of the landwere specifically described in the plaint, wherein the petitioners-defendants were shown as the land owners adjacent to the suitschedule land. It is the specific case of the respondents-plaintiffsthat the petitioners are interfering with their peaceful possessionand enjoyment of the property. The suit summons were served onthe defendants 1 to 3 on 09.01.2004. The receipt of summons by2[nd] and 3[rd] defendants, who are petitioners 2 and 3 herein, isadmitted. As stated earlier the affidavit filed in support of the I.A.by the 3[rd] defendant, who stated that the summons were notreceived by him is found to be a false statement. They were setex parte on 15.04.2004 and thereafter the suit was decreed exparte on 28.07.2004. E.P. No.314 of 2005 was filed seekingexecution of the ex parte judgment and decree and the petitionersreceived notices on 31.01.2006. In other words, the statementmade on affidavit by the petitioners that they came to be aware ofthe ex parte decree only on 20.12.2006 is contrary to the materialfound on record as found by the Courts below. Whatever may bethe position with respect to the service of suit summons,admittedly they have received notices in E.P. No.341 of 2005 on31.01.2006 at least within 30 days from that date they ought tohave filed a petition seeking setting aside of the ex parte decree. However, the applications for setting aside ex parte decree dated2.07.2004 is filed only on 29.12.2006 i.e., after 11 months from31.01.2006. Further, they did not file an affidavit explaining thedelay and setting out the sufficient cause for filing the applicationto set aside the ex parte decree after long lapse of more than two Viewed from any angle the explanation submitted for makinga belated application beyond 30 days is not satisfactory. In thefacts of the present case there is no error committed by theCourts below in dismissing the I.A. and confirmation thereof. Thejudgment cited by the learned counsel for the petitioner isdistinguishable on facts as in the case cited by the learnedcounsel for the petitioners there was a specific plea taken thatalong with summons the suit plaint and the documents were notannexed and thereby there was non-compliance of Order V Rule 2of C.P.C. There is no such plea in the present case. On the otherhand there was no issue raised with respect to the non-complianceof any of the provisions of the C.P.C. In that view of the matterthe said judgment has no application.

Accordingly, the Civil Revision Petition is dismissed. Thereshall be no order as to costs. Consequently, the miscellaneouspetitions pending, if any, shall also stand closed.

Dated: 31.12.2015Ssv

____________________________

CHALLA KODANDA RAM, J

[1]2008 (1) ALT 47