( 1 ) THIS revision petition is filed against the order dated 16-10-2001 in C. M. A. No. 117/2001 on the file of the III Additional senior Civil Judge, Vijayawada confirming the order dated 17-4-2001 in I. A. No. 1040 of 2000 in O. S. No. 2091 of 1999 on the file of IV additional Junior Civil Judge, Vijayawada.

( 2 ) THE revision petitioner is the 1st defendant in O. S. No. 2091 /1999 filed by the respondents 1 and 2 herein. The suit was filed for recovery of arrears of rent and damages and also for eviction of the revision petitioner from the possession of the suit property. The revision petitioner is admittedly a tenant in possession of the suit property on the date of the suit. An ex parte decree was passed against the revision petitioner on 18-7-2000. It was executed and possession was taken by the plaintiffs on 5-8-2000. On 7-8-2000, the revision petitioner filed LA. No. 1040 of 2000 under Order 9 rule 13 of C. P. C. requesting the trial Court to set aside the ex parte decree dated 18-7-2000. The said petition filed by him is well within time. The trial Court dismissed the petition on 17-4-2001 on the ground that as plaintiffs took delivery of the premises on 5-8-2000, there are no reasonable grounds to reopen the matter by setting aside the ex parte decree. The trial Court further observed that the petition is lacking in bona fides and it is liable to be dismissed. The said order of the trial court was confirmed by the appellate Court. The appellate Court also observed in its order that since the possession of the suit schedule property was already delivered to the plaintiffs, there is no necessity to set aside the ex parte decree at this stage. That is the ground on which the appellate Court confirmed the order of the trial Court. In the course of the impugned order, the appellate Court further observed that there is no evidence on the side of the 1st defendant to show that the plaintiffs played fraud on him except his self statement.

( 3 ) THERE can be no dispute that the mere fact that by the date of the petition, the plaintiffs executed the decree and took possession of the property is not at all a valid ground for dismissing the petition to set aside the ex parte decree by the trial Court against any of the defendants. The trial Court is bound to consider whether the defendants have shown any sufficient cause for their absence on the date of the ex parte decree or not. No other factor need be taken into consideration by the trial Court for dismissal of the petition under Order 9 Rule 13 C. P. C, however, without considering the reason mentioned by the revision petitioner for his absence on the date of the ex parte decree, the trial Court passed the impugned order. The said order of the trial Court deserves to be set aside by this Court.

( 4 ) IN this regard, learned counsel for the respondents-plaintiffs contended that the revision petitioner took three adjournments for filing written statement, even after the adjournment was granted on payment of costs, the revision petitioner did not file his written statement in the suit and therefore the ex parte decree is not liable to be set aside. It is to be stated that the previous conduct of the parties to the suit by the date of ex parte decree or by the date of dismissal of the suit for default of the plaintiffs does not play vital role in deciding the crucial question whether sufficient cause is shown by the parties for the absence on the date of ex parte decree or dismissal of the suit for default of plaintiffs. In the affidavit, the revision petitioner has categorically stated that one of the plaintiffs approached him and asked him not to contest the suit promising that they do not intend to evict the revision petitioner from possession of the suit property and the suit property and the suit is meant for taking action against the other defendants in the suit. If that cause is true, then it is a sufficient cause for the absence of the revision petitioner on the date of

Click Here to Read the rest of this document