CRP/707/2015 of Smt. Emmadi Shyamalamma Vs Dabbi Mallikarjuna Rao on 31 December 2015

COMMON JUDGMENT:

Since all the revision petitions are in respect of thesame properties pertaining to the same suit and parties are alsoone and the same and since the learned counsel wanted toadvance arguments in all the revision petitions and also theappeal and requested for disposal of all these matters, therevisions petitions and the appeal are being disposed oftogether by way of a common judgment.

The orders impugned in all these matters are of even date and of the same suit. C.R.P.No.4614 of 2014 is filed bythe petitioners/defendants against the order, dt.11.11.2014passed in I.A.No.1172 of 2014 in O.S.No.739 of 2014, wherebythe Principal Senior Civil Judge, Ranga Reddy District atL.B.Nagar dismissed the application filed by the petitionersherein under Section 5 of Limitation Act to condone the delay of28 days in filing the petition under Order 9 Rule 13 to set asidethe exparte decree, dt.18.07.2014. C.R.P.No.4609 of 2014 isfiled by the petitioners against the order passed by the court below in E.A.No.223 of 2014 in E.P.No.190 of 2014 dismissingthe application filed under Order 21 Rule 26 C.P.C., for stay ofexecution. C.R.P.No.707 of 2015 is filed by thepetitioners/defendants against the order, dt.19.01.2015 passedin E.A.No.271 of 2014 in E.P.No.190 of 2014 filed underSections 151 and 144 of C.P.C., to direct the decree holder tore-deliver the property to the petitioners. C.R.P.No.776 of 2015is filed by the petitioners/defendants against the orderdt.19.01.2015 passed in E.A.No.282 of 2014 in E.P.No.190 of2014 under Sections 151 and 144 of C.P.C. Similarly, C.R.P.(SR) No.4215 of 2015 is filed against the order, dt.19.01.2015passed in E.A.Nos.271, 282 & 288 of 2014 in E.P.No.190 of2014 filed under Sections 151 and 144 of C.P.C. C.M.A.No.1028 of 2014 is filed by the appellants/defendantsagainst the order passed in I.A.No.1173 of 2014 whereby thecourt below dismissed petition to set aside the exparte decreedt.18.07.2014.

Since C.R.P.No.4614 of 2014 will have the effect ofdisposal of other revision petitions and the appeal, this revisionis taken up for consideration.

The case of the petitioners/defendants in O.S.No.739 of2014 is that they received notices in the month of May 2015

and as they were under an impression that the court is invacation and as they are illiterates and have no legalknowledge, they did not appear before the court below. Thereafter, the respondents came to the suit schedule propertyand threatened the petitioners. On enquiry, they came to knowthat the court below passed exparte decree on 18.07.2014 inthe said suit. Hence, they filed I.A.No.1172 of 2014 seekingcondonation of delay of 28 days in filing a petition under Order9 Rule 13 to set aside the exparte decree dt.18.07.2014.

The respondents filed counter affidavit stating that thepetitioners received suit summons and they are well aware ofthe proceedings pending between the same parties inO.S.No.56 of 2014 and 57 of 2014 on the file of Junior CivilJudge at Rajendarnagar and contested the same. They neverthreatened the petitioners. It is also stated that the MandalSurveyor was appointed to survey the land. The original landowners (petitioners’ vendors) cancelled the sale deed executedin favour of the petitioners. The petitioners without having anyright or title are trying to grab their property. The petitioners filedI.A.No.1172 of 2014 to stay the execution proceedings and therespondents sought for dismissal of the said petition.

The court below dismissed the application filed by the petitioners on the ground that several suits are pendingbetween the parties and though the petitioners have legalknowledge, they have not shown sufficient cause to condonethe delay.

The learned counsel for the petitioners submits that

notices were issued to the petitioners in I.A.No.1172 of 2014 inO.S.No.117 of 2014 in the month of May 2014 to the effect thatthe said application is posted to 13.06.2014 and the suit isposted to 27.06.2014 and they have to appear before thevacation judge-cum-Senior Civil Judge, Ranga Reddy District. It is also submitted that the petitioners could not appear beforethe court below as they were under the impression that courtwill not function during vacation. He also submits that as perSection 32 (5) of the Andhra Pradesh Civil Courts Act, 1972,when once the vacation is over, all suits, appeals and otherproceedings pending in the court of the Vacation Civil Judgewhich, but for this section would have been instituted orpending in such District Court shall stand transferred to theCourt concerned and any judgment, decree order orproceedings passed by the Vacation Civil Judge shall, aftersuch transfer be deemed to be a judgment, decree, order orproceedings by the Court concerned. He also contends that as per Rule 63 of Civil Rules of Practice, notice is required to beissued to the parties for transfer of suits and in the presentcase, admittedly, no such notice and summons were issued tothem. He also submits that because of that confusion also, thepetitioners could not appear before the court below. He filedcopies of notices issued to the petitioners in I.A.No.310 of 2014in O.S.No.117 of 2014, which are transferred to the court ofSenior Civil Judge, Ranga Reddy District and re-numbered asI.A.No.1172 of 2014 in O.S.No.739 of 2014. He also submitsthat when the said suit is filed by the respondents/plaintiffs todeclare them as absolute owners and possessors of the suitschedule property and also for permanent injunction against thepetitioners/defendants not to interfere into the suit scheduleproperty, but the court below decreed the suit granting recoveryof possession of the suit schedule property and declared therespondents/plaintiffs as absolute owners of the scheduleproperty. The trial court should have applied its mind andrecorded reasons. He also submits that in the plaint it is clearlymentioned by the respondents/plaintiffs that O.S.Nos.56 and 57of 2014 are filed by the petitioners for perpetual injunctionbefore the court of Junior Civil Judge-cum-XVII MetropolitanMagistrate, Cyberabad, Rajendarnagar and the trial court also passed orders dt.23.09.2014 in E.A.No.223 of 2014 inE.P.No.119 of 2014 against the pleadings of therespondents/plaintiffs. In support of his contentions, he reliedon a decision of the Apex Court in BALRAJ TANEJA AND

ANOTHER VS. SUNIL MADAN AND ANOTHER[[1]]and also the decisions of this Court reported in MAILWAR NARSAPPAAND ANOTHER VS. B.SANGAMMA[[2]],KEDARISETTIATMARAM VS. N.SEETHARAMARAJU[[3]], YELLAGOLA

RAMANARASAIAH VS. G.SADANAND[[4]]and KURUPROLUATCHAYA AND OTHERS VS. BIDESHI RAGHURAMSINGH[[5]].

On the other hand, the learned counsel for the respondents submits that the petitioners have receivedsummons in I.A.Nos.1172 and 1173 of 2014 on 13.06.2014and 27.06.2014 respectively and the same were returned bythem. He also submits that in the plaint copy sent by therespondents herein to the petitioners herein, it was clearlymentioned that the suit in O.S.No.117 of 2014 was re-numbered as O.S.No.739 of 2014 by the Principal Senior CivilJudge, Ranga Reddy District at L.B.Nagar. Therefore, it cannot be said that in the notices and summons received by thepetitioners, it was mentioned as Vacation Judge and thepetitioners have no legal knowledge and are aware of legalproceedings. He also submits that since thepetitioners/defendants have not explained the delay properly,the court below rightly dismissed the said applications. Assuch, no interference is warranted.

In this case it has to be seen that the delay is only of 28days and the copies of cause title in the notice and summonsfiled by the petitioners go to show that though the petitionersreceived summons and notices on 13.06.2016 and 27.06.2014and they did not appear before the court below and havewaited up to the filing of execution proceedings. Thedocuments filed by the petitioners show that after transfer of thesuit, the cause title is corrected and the suit in O.S.No.117 of2014 is re-numbered as O.S.No.739 of 2014 by the Senior CivilJudge and it is not known when the corrections are made in thecause title. It is not known to the petitioners whether the saidcorrections are made either before issuing of notices or afterreceiving of notices. More so, as contended by the learnedcounsel for the petitioners, the suit was filed for two prayers,one for recovery of possession and injunction and also to declare that the plaintiffs are the absolute owners andpossessors of the suit schedule property. The court belowdecreed the suit without applying its mind and directed thepetitioners to hand over the vacant possession of the suitschedule property. I n Balran Taneja’s case (Supra-1) theApex Court in paras 45 and 46 held as follows:

“Learned counsel for Respondent 1 contended that theprovisions of Order 20 Rule 4 (2) would apply only tocontested cases as it is only in those cass that “thepoints for determination” as mentioned in this rule willhave to be indicated, and not in a case in which thewritten statement has not been filed by the defendantsand the facts set out in the plaint are deemed to havebeen admitted. We do not agree, whether it is a casewhich is contested by the defendants by filing a writtenstatement, or a case which proceeds exparte and itultimately decided as an exparte case, or is a case inwhich the written statement is not filed and the case isdecided under Order 8 Rule 10, the court has to write ajudgment which must be in conformity with theprovisions of the Code or at least set out the reasoningby which the controversy is resolved.

An attempt was made to contend that thedefinition of judgment as set out in Section 2 (9) of theCode would not be applicable to the judgment passedby the Delhi High Court in its original jurisdictionwherein the proceedings are regulated by theprovisions of the Delhi High Court Act, 1966. It iscontended that the word “judgment” used in the DelhiHigh Court Act, 1966 would not take its colour from the definition of “judgment” contained in Section 2 (9) of theCode of Civil Procedure. We do not intend to enter intothis controversy, fortunately as it is not contended thatthe Code of Civil Procedure does not apply, but wecannot refrain from expressing that even if it were so,the Delhi High Court is not absolved of its obligation towrite a judgment as understood in common parlance. Even if the definition were not contained in Section 2(9) or the contents thereof were not indicated in Order20 Rule 4 (2) CPC, the judgment would still mean theprocess of reasoning by which a Judge decides a casein favour of one party and against the other. In judicialproceedings, there cannot be arbitrary orders. A Judgecannot merely say “suit decreed” or “suit dismissed”. The whole process of reasoning has to be set out fordeciding the case one way or the other. This infirmityin the present judgment is glaring and for that reasonalso the judgment cannot be sustained”.

In Mailwar Narsappa’s case (Supra-2) this Court in para 17 observed as follows:

In Mailwar Narsappa’s case (Supra-2) this Court in para 17 observed as follows:

“Applying the said ratio to the facts ofthe present case, it is clearly evident that thedecree passed by the trial Court is an ex partedecree, which is also vitiated on account of non-application of mind and non-consideration of fiveissues. Hence, the impugned judgment suffersfrom procedural as well as jurisdictional errorsand warrants interference by this Court underSection 96 C.P.C. The appeal suit, therefore, isliable to be allowed by setting aside the decreeand judgment passed by the Court below and the appellants/defendants are required to be grantedopportunity to contest the suit by participating inthe suit from the stage of evidence of PW3onwards”.

In Kedarisetti Atmaram’s case this Court in para 30 held as follows:

“Thus, it is clear that merely becausea suit has been filed, the Court is notbound to decree the suit. The Court hasto exercise judicial discretion and examinethe facts and circumstances of the caseand consider the motive behind litigationand a fraud, if any, played by the parties tothe suit and the situation under which thedefendant was set ex parte and notcontesting the suit. In fact, in a casewhere the defendant is not appearingbefore the Court for any reason, theburden increases on the Court tometiculously examine the entire recordand if the Court feels that it is not a fit caseor decreeing the suit, in its discretion, theCourt may dismiss the suit and reject theprayer for specific performance. TheCourt is not bound to grant specificperformance merely because a suit is filedfor specific performance”.

In Yellagolla Rama Narsaiah’s case (Supra-4) this Court in para 9 held as follows:

“The Civil Courts are expected to respectthe orders passed by each other rather than act inconflict with each other. This is based upon theprinciple of commity which has to be maintainedbetween the various courts. When the RentController has come to notice that there is an orderof injunction passed against the decree-holder inR.C.No.79/83, he should have waited till the saidinjunction was modified or some other order waspassed, which would not enable the said decreeholder to circumvent orders of injunction which werein force in I.A.No.855/89. It may be technicalitythere is no injunction restraining the Rent Controllerfrom executing the decree of eviction inR./C.No.79/83, but by permitting executing withknowledge that the decree-holder is restrained byanother Court in executing the said decree, the RentController unwittingly helped the decree-holder incircumventing the orders passed by another CivilCourt. Such an attitude on the part of the Court isto be deprecated. What the Ist respondent hasdone in this case cannot but be termed as an abuseof the legal process. How far the revision petitioneris equally guilty of the abuse of legal process inobtaining an ex parte decree is a matter to bedecided in I.A.No.855/89 or in O.S.No.613/89. Theproper thing for the Ist respondent herein was tosatisfy the Civil Court in I.A.No.855/89 to see thatthe injunction order is vacated, if there were suchmerits”.

I n ESHABHATTACHARJEE VS. MANAGINGCOMMITTEE OF RAGHUNATHPUR NAFAR ACADEMYAND OTHERS[[6]]the Apex Court in para 15 (iii) (vi) & (viii)held as follows:

“(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimateto be vigilant so that in the ultimate eventuate there is no real failure of justice. (viii)There is a distinction between inordinate (viii)There is a distinction between inordinate delay and a delay of short duration of few days, for to the former doctrine of prejudice is attracted whereas to the latter, it may not be attracted.

That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

I n S.GANESHARAJU AND ANOTHER VS.NARASAMMA (DEAD) THROUGH LRS. AND OTHERS[[7]]the Apex Court in paras 12, 13 and 14 held as follows:

“The expression “sufficient cause” as appearingin Section 5 of the Limitation Act, 1963, has to begiven a liberal construction so as to advancesubstantial justice. Unless the respondents are ableto show mala fides in not approaching the court withinthe period of limitation, generally as a normal rule,delay should be condoned. The trend of the courtswhile dealing with the matter with regard tocondonation of delay has titled more towardscondoning delay and directing the parties to contestthe matter on merits, meaning thereby that suchtechnicalities have been given a go-by.

The rules of limitation are not meant to destroyor foreclose the right of parties. They are meant tosee that parties do not resort to dilatory tactics butseek their remedy promptly.

We are aware of the fact that refusal tocondone delay would result in foreclosing the suitorfrom putting forth his cause. There is no presumptionthat delay in approaching the court is alwaysdeliberate. In fact, it is always just, fair andappropriate that matters should be heard on meritsrather than shutting the doors of justice at thethreshold. Since sufficient cause has not beendefined, thus, the courts are left to exercise adiscretion to come to the conclusion whethercircumstances exist establishing sufficient cause.

The only guiding principle to be seen is whether aparty has acted with reasonable diligence and had notbeen negligent and callous in the prosecution of thematter. In the instant case, we find that theappellants have shown sufficient cause seekingcondonation of delay and the same has beenexplained satisfactorily”.

Rule 63 of Civil Rules of Practice reads as follows:

63. (48) (1) Application for transfer:-

“An application for transfer of a suit, appeal or otherproceeding from one court in another shall be made byoriginal petition entitled in the matter of the pendingsuit, appeal or other proceeding as in Form No. 17Notice of the application in Form No.18 shall be issuedand served on the other parties to the suit, appeal orother proceeding. Provided that if under Section 24 ofthe Code, the District Court transfers as suit, appeal orother proceeding of its own motion and without givingnotice in the first instance, it shall record in writing itsreasons for dispensing with such notice and shalldirect the court from which it has been transferred tointimate the parties or their Advocates about thetransfer and the date on which they should appearbefore the court to which it has been transferred.”

The plaintiffs themselves have clearly stated that inrespect of the suit schedule properties, they have filed a suitand status quo order was granted by the court below, but thecourt below has not gone into the said aspect.

Instead of going into the technicalities about the

appearance of the petitioners, it has to be seen that there is noenormous delay in filing the applications for condonation ofdelay for setting aside exparte decree. On going through thedocuments referred to above and the reasons given by thepetitioners would go to show that there was confusion in thecause title of suit, show cause notice, interlocutory applicationsas well as summons in the suit. When the applications are filedunder Order 21 Rule 26 of C.P.C., the court below instead oftaking up the application for condonation of delay, proceeded toconsider E.P. proceedings.

In view of law laid down in above decisions and facts andcircumstances, I am of the opinion that the trial court shouldhave condoned the delay of 28 days in filing the applications bythe petitioners under Order 9 Rule 13 C.P.C., to set aside the exparte decree. The court below straight away numberedapplication for setting aside exparte decree. More so it appearsthat there is no notice regarding transfer of suit. This also goesto show non-application of mind by the court below. Whenonce this court holds that the petitioners are entitled forcondonation of delay of 28 days, the order dt.11.11.2014passed in I.A.No.1172 of 2014 is liable to be set aside. Assuch, they are entitled for condonation of delay and the exparte order dt.18.07.2014 is liable to be set aside. It is also to beseen that when once exparte decree is set aside under Order 9Rule 13, the petitioners are entitled for restitution of theproperty. Though it has been pleaded by the petitioners thatfraud has been played by the respondents while obtaining theexparte decree, this court feels that the said aspect is notrequired to be decided at this stage, because the same has tobe gone into by the trial court at the time of trial.

In view of the same, C.R.P.4614 of 2014 andC.M.A.No.1028 of 2014 are allowed. Since the exparte decreeis set aside, common order dt.19.01.2015 passed inE.A.Nos.271, 282 & 288 of 2014 in E.P.No.190 of 2014 is alsoset aside and consequently, C.R.P.Nos.707/2015 & 776 of2015 are allowed. C.R.P (SR) No.4215 of 2015 andC.R.P.No.4609 of 2014 which are filed to stay the executionproceedings are dismissed as infructuous, as the ex partedecree is set aside, the question of staying executionproceedings does not arise. Miscellaneous petitions pending, ifany, shall stand closed. No order as to costs.

________________________

A.RAJASHEKER REDDY, J

THE HON’BLE SRI JUSTICE A.RAJASHEKER REDDYC.R.P.NOS.4614 &4609 OF 2014, 707 & 776 OF 2015,CRP(SR) NO.4215 OF 2015 & C.M.A.NO.1028 OF 2014

Dt.31.12.2015

[2]) 2013 (6) ALD 499) 2013 (6) ALD 499

[3]) 201 (1) ALD 426) 201 (1) ALD 426

[4]) 1989 (3) ALT 610) 1989 (3) ALT 610

[5]) AIR 1995 AP 58) AIR 1995 AP 58

[6]) 2014 (1) ALD 21 (SC)) 2014 (1) ALD 21 (SC)

[7]) (2013) 11 SCC 341) (2013) 11 SCC 341