CRP/3173/2015 of Smt. Nalisetty Vijayalakshmi Vs Dasu Veera Prakash on 30 December 2015

THE HON’BLE SRI JUSTICE A.RAMALINGESWARA RAOCRP Nos.3173 and 3919 of 2015

COMMONORDER:

These two Civil Revision Petitions are being disposed of by thiscommon order as they arise out of the same Order in I.A.No.1131 of2014 in O.S.No.185 of 2013.

0 2 . For narration of the parties, the parties as arrayed inC.R.P.No.3173 of 2015 are taken into consideration.

03. C.R.P.No.3173 of 2015 was filed by the defendant in the suit,whereas the C.R.P.No.3919 of 2015 was filed by the plaintiff in thesuit. The said suit was filed by the plaintiff in the Court of VII AdditionalDistrict Judge, Ongole, seeking damage for malicious prosecution bythe defendant. The defendant was working as Agricultural Officer atthe relevant point of time and in discharge of her duties, she seizedcertain commodities and ultimately that seizure was held to be illegal. Be that as it may, she was set ex parte on 24.10.2013 and an ex partedecree was passed on 16.12.2013. For setting aside the said ex partedecree, she filed I.A.No.1131 of 2014 stating as follows:

“ In fact, I submit that the plaintiff filed the suitagainst me for damages on 22.07.2013. The Hon’bleCourt issued suit summons to me and the matterposted to 23.08.2013 for first hearing. I further submitthat as per the Hon’ble Court records, the summonwas affixed to the door of the house on 14.08.2013, inwhich I lived. But by that time I have already vacactedthe house and I have shifted to Hyderabad. But theHon’ble Court on first hearing date i.e., 23.08.2013,trasnsferred the suit to the Hon’ble VII AdditionalDistrict Court and posted to 24.10.2013. I furthersubmit that on 24.10.2013 the Hon’ble Court recorded that summons of defendant through Court served,service is sufficient and I was ex parte and posted thesuit for 7.11.2013 for plaintiff’s evidence and theHon’ble Court examined plaintiff and passed ex parteorders on 16.12.2013 allowing an ex parte decree ofthe suit claim against me.

I further submit that basing on the ex partejudgment and decree dt. 16.12.2013, the Plaintiff/DHRfiled the EP No.20 of 2014 against me and I came toknow about the suit only after receiving summons inE.P. “

04. The plaintiff filed Counter Affidavit stating with the averment thatdefendant vacated the house by the time the suit summons wereaffixed to the door of the house on 14.08.2013 was false. TheProceedings of the Commissioner of Agriculture dt. 22.02.2014indicates that she was on leave from 19.04.2013 to 31.10.2013 and itdoes not mean that she vacated the house during the relevant period. He also disputed the other averments made in the affidavit filed insupport of her application. The lower Court without assigning anyreason, allowed the said application by observing as follows:

“Heard the both counsel. Perused the Record. Petition is allowed on payment of ½ of the suit costspayable on or before 10.08.2015”

05. The defendant in the suit is aggrieved by the imposition of half ofthe suit costs and filed C.R.P.No.3173 of 2015, whereas the plaintiff isaggrieved with regard to allowing of the application without assigningany reason and filed C.R.P.No.3919 of 2015.

06. Learned counsel for petitioner in C.R.P.No.3173 of 2015 submitsthat there is no need for filing a separate application seekingcondonation of delay in filing application to set aside the ex partedecree, if such application is filed within 30 days of the knowledge ofpassing ex parte decree. The Lower Court should not have imposedpayment of half of the suit costs while allowing the application seeking setting aside the ex parte decree.

07. Learned counsel for petitioner in C.R.P.No.3919 of 2015 submitsthat the order of the Lower Court is bereft of any reasons and when adetailed affidavit and counter affidavit are filed before the Court, theCourt should have recorded reasons if it wanted to allow I.A.No.1131of 2014. He also submits that an application in I.A.No.336 of 2014 wasfiled seeking condonation of delay in filing the application inI.A.No.1131 of 2014 and the Order in I.A.No.1131 of 2014 was passedwithout disposing of the said application. But the learned counsel forpetitioner/defendant submits that no application is necessary but it wasfiled by way of abundant caution.

08. A perusal of the impugned Order shows that no reasons wereassigned for allowing the application. In order to decide whether anyapplication for condoning the delay is necessary or not, the relevantfact is with regard to the knowledge of the ex parte decree to thedefendant. In para No.7 of the affidavit filed in support of theapplication, she stated that she came to know about the same onlyafter receiving the summons in E.P.No.20 of 2014 but the date ofreceipt of such summons were not indicated.

09. In the circumstances, the impugned Order dt. 16.07.2015 is setaside and the matter is remanded to the Lower Court for passingappropriate reasoned Order after hearing both the counsel, inaccordance with law, within a period of one month from the date ofreceipt of a copy of this Order.

10. Accordingly, both the C.R.Ps are allowed. There shall be noorder as to costs. As a sequel, miscellaneous petitions, if any pendingin these Civil Revision Petitions, shall stand closed.

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A.RAMALINGESWARA RAO, J

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THE HON’BLE SRI JUSTICE A.RAMALINGESWARA RAO

CRP Nos.3173 and 3919 of 2015

Dt.30-12-2015

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