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2016 Supreme(AP) 504
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
M. Satyanarayana Murthy, J.
Sami Ateeq Ahmed - Petitioner
Versus
Mohammed Rafiq Khan and others - Respondents
Civil Revision Petition No. 2820 of 2016
Decided on : 19-09-2016
For the Petitioner:Zeeshan Adnan Mahmood, Advocate.
For the Respondent:Venkatesh Despande, Advocate.
Headnote:
Civil Law – Civil Procedure Code, 1908 – Order IX – Rule 13 read with Section 151 – Limitation Act – Section 5 – Challenging the order passed by the XI Junior Civil whereby, the petition filed under Order IX Rule 13 read with Section 151 C.P.C. was allowed setting aside the ex parte decree dated 14.12.2013 while permitting the petitioner to file his written statement to defend the suit – Petitioner before the Trial Court (first respondent herein) filed petition under Order IX Rule 13 read with Section 151 C.P.C. to set-aside the ex parte decree dated 04.12.2013 permitting the petitioner to file written statement to defend the suit – It is alleged that first respondent filed suit for eviction, recovery of arrears of rents and mesne profits and the suit was posted to 06.11.2013 for filing written statement by the petitioner – As petitioner was suffering from Lumbago and Left Sciatica, since 01.11.2013, he could not file his written statement, since he was advised to take complete bed rest and thereby, he could not instruct his counsel to prepare written statement and file it – As the petitioner failed to file his written statement on 06.11.2013, he was set ex parte and posted the suit for plaintiffs evidence and later, on 04.12.2013, recording the plaintiffs evidence, the suit was decreed – Held, therefore, in such a case, the reason assigned by the petitioner cannot be disbelieved while deciding petition under Order IX Rule 13 to set-aside ex parte decree, in view of the judgment reported in V. Harithas case (referred supra), wherein, this Court held that, when the Court comes to a conclusion that there is sufficient cause to condone delay and the application filed in regard thereto shall be allowed, the consequential rejection order passed in the other application filed under Order IX Rule 13 of C.P.C will not survive and will stand automatically cancelled notwithstanding the fact that no appeal has been filed as against that order – Thus, in view of the principle laid down in the judgments referred supra, an order passed by the Court to set-aside the ex parte decree can be sustained, since the order passed in the petition under Section 5 of the Limitation Act in I.A.No.92 of 2016 in O.S.No.232 of 2013 attained finality, believing the reason assigned by the petitioner – Therefore, the order of Trial Court setting aside the ex parte decree does not call for interference by this Court – However, the permission granted to the petitioner to file written statement is erroneous, since it is not consequential to setting aside an ex parte decree and therefore, order to extent of granting leave to file written statement is hereby set aside – Accordingly, the point is answered – Petition is allowed. (Paras 28, 29 and 30)
M. Satyanarayana Murthy, J.
This civil revision petition is filed challenging the order passed by the XI Junior Civil Judge (FAC I Junior Civil Judge), City Civil Court at Secunderabad dated 22.02.2016 in I.A.No.92 of 2016 in O.S.No.231 of 2013 whereby, the petition filed under Order IX Rule 13 read with Section 151 C.P.C. was allowed setting aside the ex parte decree dated 14.12.2013 while permitting the petitioner to file his written statement to defend the suit.
2. The petitioner herein is the first respondent before the Trial Court and the other respondents herein are the respondents.2 to 4 before the Trial Court.
3. For the sake of convenience, the ranks given to the parties in I.A.No.92 of 2016 in O.S.No.232 of 2013 will be adopted throughout the judgment.
4. The petitioner before the Trial Court (first respondent herein) filed petition under Order IX Rule 13 read with Section 151 C.P.C. to set-aside the ex parte decree dated 04.12.2013 permitting the petitioner to file written statement to defend the suit. It is alleged that the first respondent filed suit for eviction, recovery of arrears of rents and mesne profits and the suit was posted to 06.11.2013 for filing written statement by the petitioner. As the petitioner was suffering from Lumbago and Left Sciatica, since 01.11.2013, he could not file his written statement, since he was advised to take complete bed rest and thereby, he could not instruct his counsel to prepare written statement and file it. As the petitioner failed to file his written statement on 06.11.2013, he was set ex parte and posted the suit for plaintiffs evidence and later, on 04.12.2013, recording the plaintiffs evidence, the suit was decreed.
5. The petitioner after recovery from his illness, contacted his counsel on 25.04.2014 and enquired about the fate of the case and in-turn he was informed that an ex parte decree was passed on 04.12.2013 and on 25.04.2014 the petitioner received notices of execution proceeding filed by the first respondent for petitioner's eviction. Immediately, the petitioner filed petition before the Court under Section 5 of the Limitation Act to condone delay of 115 days and to set-aside the ex parte decree dated 04.12.2013 thereby permit the petitioner to file his written statement.
6. The respondent filed counter affidavit denying material allegations and contended that the petitioner was afforded sufficient opportunity to file his written statement and to contest the matter. It was also contended that even the junior counsel representing the petitioner sought time on many occasions and on no occasion the reason of petitioner's ill health was ever cited. Further, the junior counsel refused to cross-examine the witnesses and examine D.W.1 during Trial and that the medical certificate produced by the petitioner does not disclose the factum of advise to take bed rest and that the delay was not explained, thereby there is no cause, much less, sufficient cause to set aside the ex parte decree.
7. Upon hearing argument of both the counsel, the Trial Court allowed I.A.No.340 of 2014 by order dated 27.01.2016 filed under Section 5 of the Limitation Act, accepting the reason for his failure to appear before the Court. Further, the Trial Court set aside the ex parte order passed while permitting the petitioner to file written statement on payment of costs of Rs.1,000/- to the first respondent.
8. Aggrieved by the order passed by the Trial Court, the present civil revision petition under Article 227 of the Constitution of India is filed challenging the order on various grounds, mainly contending that, in the petition filed under Order IX Rule 13, permission to file written statement cannot be granted and that the Trial Court passed an order exceeding its limits and beyond the scope of Order IX Rule 13 and in such a case, this Court can set aside the impugned order passed by the Trial Court.
9. During hearing, learned counsel for the revision petitioner Sri Zeeshan Adnan Mahmood would
