CRP/2338/2022 of Smt. Seelam Laxmamma Vs Smt. Chand Sultana on 30 December 2022

ORDER:

This Civil Revision Petition is filed under Article 227of the Constitution of India assailing the common orderdated O8.O8.2022 in LA.No.3O6 of 2021 in O.S.No.109 of2008 on the file on the Iile of the XXVI Additional ChiefJudge, Hyderabad

2. This I.A. No.3O6 of 2021 was filed theby petitioner/plaintiff under Section 151 of the CivilProceduie Code, 1908 (for short 'CPC) for a direction to there spondents/ defendant Nos.1 to 4 to be present in theCourt in O.S.No. 109 of 2OO8 and if necessar5r to direct thePolice Tappachabutra and Langer House to ensure theirpresence and to pass such other orders as the Court deemsfit. The leanned judge of the trial Court has dismissed thisI.A.No.3O6 of 2027 along with IA No.3O7 of 2O2I filed bythe petitioner/plaintiff to reopen the suit, which is comingup for argurnents, through the common order dated08 .OA .2022 . The revision petitioner/ plaintiff has challenged the common order dated O8.O8.2O22 only to the extent inIA No.306 of 2021 .

3. Be it stated that on behalf of respondent No.S,Sri Sharad Sanghi, learned advocate has filed Vakalat. Asper the ca'rse title in the civil revision petition, respondentNos.2 to 7 are not necessary parties. Whereas, accordingto the proceedings dated 30.11.2022, the revision petitionwas adjourned to 15.12.2022 with a condition that indefault of filing of any proof of service or sending notice torespondent No.1, the civil revision petition standsdismissed against respondent lJo.1. Thereafter, as per thememo dated ).9.12.2022, no such report is filed, but in thewritten submissions, it is mentioned that the respondent/defendant No.1 was set ex parte before the trial Court inthe original suit in OS No.109 of 2008 and that the onlyissue is the defendant No.8 does not have any title. Assuch, the civil revision petition stands dismissed againstrespondent No. 1 pursuant to the proceedings dated30.17.2022.

4. Heard the learned counsel for the revisionpetitioner/ plaintiff and the respondent No.8/defendantNo.8. The submissions made on either side have receiveddue consideration of this Court.

5. Undisputedly, the original suit in OS No. 109 of2O0B was filed by the plaintiff for declaration of title andrecovery of possession ln respect of the suit scheduleproperty. In the original suit, defendants I to 4 remainedabsent and they were set ex parte. Evidence on both sidesconcluded and when the suit was adjourned forarguments, the present application in IA No.306 of 2O2lwas filed by the petitioner/ plaintiff with a prayer to directthe defendant Nos.1 to 4 to be present in the Court. Alongwith this I.A., another I.A.No.3O7 ol 2027 is a-lso filed witha prayer to reopen the suit, which is coming up forarguments.

6. As per the orders impugned, defendant Nos.land 4 were set ex parte on 09.06.2008, whereas defendantNos.2 and 4 were set ex parte on 15.10.2008. The [suit]summons were taken against them by way of substituted service by publishing in a news paper and they remainedabsent and set ex parte. The only defendant contested thesuit is defendant No.B, u,ho filed the written statement,absent and set ex parte. The only defendant contested thesuit is defendant No.B, u,ho filed the written statement,issues settled, trial concluded, written arguments were alsoIiled on both sides. At this stage, the present applicationin I.A.No.3O6 of 2027 along with I.A.No.3O7 of 2021 arefiled for direction against the defendant Nos. I to 4 for theirappearance, if necessarv directing the concerned police toIiled on both sides. At this stage, the present applicationin I.A.No.3O6 of 2027 along with I.A.No.3O7 of 2021 arefiled for direction against the defendant Nos. I to 4 for theirappearance, if necessarv directing the concerned police toproduce them before the trial Court and to reopen the suitrespectively.respectively.

7. Whereas, the specific case of the contestingdefendant No.B is that the prayer in the petition1Smisconceived, no such direction could be issued either tothe defendant Nos.l to 4 or to the police concerned tosecure their presence before the trial Court and suchapplication is only filed to delay the proceedings before thetrial Court.

BThe learned counsel for the revision petitioner/plaintiff would submit that the present civil revisionpetition may be disposed of by giving an opportunity to theplaintiff would submit that the present civil revisionpetition may be disposed of by giving an opportunity to the parties to file the documents in their possession. Percontra, the learned counsel for the respondent/defendantNo.B would submit that the original suit is filed in the year2008, defendant Nos.1 to 4 were set ex parte way back inthe year 20OB itself and at this belated stage, afterconclusion of the trial, when the suit was posted fora-rguments, this application in IA No.3O6 of 2O2l dongwith IA No.3O7 of 2027 is filed and without assailing theorders in IA No.3O7 of 2027, as such the present civilrevision petition questioning the validity of the crders in IANo.3O5 of 2021 only is'miseonceived and at this belatedstage, no such direction be issued either to the defendantNos. 1 to 4 or to the police concerned for causing theirpresence in the original suit before the trial Court.

9. As per the prayer in IA No.306 of 2021, thepetitioner/plaintiff has requested the trial Court to directthe respondents/ defendant Nos.1 to 4 to be present in theCourt and if necessary to direct the police concerned toensure their presence before the tria-l Court. Whereas, asper the cause title in the present civil revision petition, [the]

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respondent Nos.2 to 7 who a-re defendant Nos.2 to 7 arenot necessarv parties and the notice of respondent/defendant [No.1 ][is ][not ][served ][in ][spite ][of conditional ][order]dated 30.71.2022. Undisputedly, the respondent/defendant Nos.l and 4 rvere set ex parte on 09.06.2008and respondent/ defendant Nos.2 and 3 were set ex parteon 15.10.2OO8 in the original suit. The defendant No.B isonly contesting the original suit, trial concluded, writtenarguments were also filed. At this belated stage, theapplication in IA No.306 ol 2021 is filed under Section 115of CPC rn aking certaiq allegations against the ProcessServer as mentioned in para-4 of the supporting affidavit.As per the order impugned in para-9, it is categoricallymentioned by the learned judge of the trial Court that thesummons were issued to these defendant Nos. 1 to 4 byway of substituted service, as such I find no force in theaverments rnade in the supporting affidavit making certainallegations against the Process Server concerned in theyear 2OO8.

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10. That apart, though the present civil revisionpetition is filed to set aside the impugned order, as statedabove, the defendant Nos.2 to 7 (including the defendantNos.2 to 4) are not necessary parties as mentioned in thecause title and that notice was not served in spite ofgranting ample opportunity to the defendant No.1 andfailed to comply with the conditional order dated30.11.2022, as such the petitioner/plaintiff is not entitledfor any such relief against the defendant Nos. I to 7.

1 1 . The learned counsel for the revision petitionerwould submit that without looking into the merits orotherwise of the claim made by the revision petitioner/plaintiff, the present civil revision petition may be disposedof by giving an opportunity to the parties to lile documentsin their possession in support of their respective claims.would submit that without looking into the merits orotherwise of the claim made by the revision petitioner/plaintiff, the present civil revision petition may be disposedof by giving an opportunity to the parties to lile documentsin their possession in support of their respective claims.

12. In this context, I may refer to the principles laidby the Hon'ble Supreme Court of India in M/s. BagaiConstruction, through its Proprietor Lo.lit Bagai u. M/s.

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Gupta Building Material Storet and in IV,C. Bansal a. UttarPrrrdesh Financial Corporation and anothefl .

13. In the above decisions, the Hon'ble SupremeCourt while dealing with similar facts for production ofadditiona-l documents and recall of witnesses held thatrecording of evidence is to be a continuous processfollowed by arguments and decision of the Court.Adjournments, reopening and recalling of witnesses are tcbe a-llowed only in compelling circumstances. Further heldthat such applications for reopening the case andprcduction of documents can only be consiriered when thetrial is yet to begin or when it is at the initial stage.

14 . In the case on hand, undisputediy, defendantNos.l to 4 were set ex parte way back in the year 2008itself. Therea-fter, the contesting defendant No.S has filedthe written statement, issues settled, trial concluded aldwritten arguments were also filed. At this belated stage inasuit relating to the year 2008, the applications in IA'aln [2ot3 ]sc la4s2 1zots1 z scc 347

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Nos.306 and 307 of 2O2l were filed to direct thedefendants 1 to 4 to be present in the court or to causetheir presence with the help of police concerned and toreopen the suit.

15. It is pertinent to note that the common orderimpugned in IA No.3O7 of 2O2I for reopening the originalsuit is not assailed and the only order challenged throughthis revision petition is the order in IA No.306 of 2027seeking a direction to the defendant Nos.1 to 4 to appearbefore the Court or direction to the concerned police to-cause their appearance. But, the learned counsel for therevision petitioner has requested to dispose of the presentrevts10tl petition directing the trial Court to receive thedocuments filed by the parties to the suit.

16. ln the above factual matrix, considering thesettled legal principles, the prayer in IA No.306 of 2O2l todirect the defendant Nos. 1 to 4 to be present in the courtor to cause their presence with the help of the concemedpolice or the request made by the learned counsel forrevision petitioner to permit the petitioner to file the AVR,JCRP No-2338 of 2022

documents is wholly untenable, misconceived and cannotbe granted. Therefore, I do not find any jurisdictional erroror infirmity in the common order impugned, the trial Courthas rightly dismissed the application and it does notwarrant any interference b.y this Court.

17. Therefore, in that view of the matter, since theoriginal suit is pending since 2008 onwards, argumentsalso appears to have becn concluded, the learned [judge ]ofthe trial Court shall make every endeavour to dispose ofthe original suit rvithin tu,o months from the date of receiptof copy of this order.

18. With the above observations and findings, theCivil Revision Petition is clismissed without costs.

As a sequel, miscellaneous applications, if anypending in this revision petition, shall stand closed.

Sd/-K.AMMAJI

ASSISTANT REGISTRAR//TRUE COPY// c_;psEcTloN oFFlcER

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'1. The XXV| Additionat Chief Judge, City Civil Court at Hyderabad? 9n" [cc ][to Sri Mahmood ][Ari ]dr;;aL 3. one CC to M/s. Sharad Sanshf fOpUCi'4. Two CD Copiesno*.jt ['f5ELcl]

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HIGH COURT

DATED:301'1212022

'I llE s iA /aORDERq)CRP.No.2338 ot 2022c)0 2 rt8 20n;:' :a-!-'. r DISPOSING OF THE CRP

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