Back
2016 Supreme(AP) 515
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
A.V. SESHA SAI, J.
Gulnar Gulabi – Appellant
Versus
Tasneem Sulthana – Respondent
C.M.A. No. 259 of 2016
Decided On : 13-10-2016
For the Petitioner:Ali Farooq, Advocate.
For the Respondent:B. Nalin Kumar, Advocate.
Headnote:
Civil Law - Limitation Act - Article 123 - Section 5 - Appeal assails the order dated passed by the said Court - Circumstances leading to the filing of the appeal are that the respondent herein instituted O.S.No. against the appellant herein for specific performance of Agreement of Sale - Learned Senior Civil Judge rendered ex parte Judgment and Decree in the said suit directing execution of Registered Sale Deed in favour of the plaintiff-respondent herein - Seeking to set aside the said ex parte judgment and decree dated the defendant-appellant herein filed I.A.No. under the provisions of Order Rule of the Code of Civil Procedure - Present appeal calls in question the validity and the legal sustainability of the said order passed by the learned Senior Civil Judge - Learned counsel for the appellant learned counsel for the plaintiff-respondent apart from perusing the material available before the Court - Learned counsel for the appellant that the order under challenge is erroneous, contrary to law and opposed to the spirit and object of the provisions of Order 9 Rule 13 of the Code of Civil Procedure - It is also the submission of the learned counsel that the defendant-appellant herein filed the application within time from the date of knowledge - It is further contended that the plaintiff had given wrong address though she had the knowledge of the correct address where the appellant is residing - It is also submitted that the defendant-appellant herein filed an application in the year in filed by the husband of the plaintiff herein by showing the correct address and the Court below failed to take into consideration the said crucial aspect - It is further submitted that the Court below grossly erred in dismissing the application basing on the endorsement of the postal authorities on the alleged notice got issued by the plaintiff - Held, Petitioner was not served with the summons and/or there was no proper service in accordance with law and order dated was nullity the question of application for condensation of delay being time barred does not arise - Even otherwise it was the case of the petitioner before the Trial Court that only he came to know that the suit was dismissed for plaintiffs non-appearance on 8.11.1994 and he moved the application under Order 9 within days of coming to know about the dismissal of suit - Property is a valuable property and substantial rights of the parties are involved. As referred to supra, the learned Senior Civil Judge rendered the ex parte judgment in a cryptic manner and without even discussing about the evidence on record. It is submitted by the learned counsel for the appellant that the appellant is in possession of the property and the same is disputed by the learned counsel for the respondent plaintiff - Court has absolutely no scintilla of hesitation nor any traces of doubt to hold that the impugned order cannot be sustained in the eye of law and the appellant herein is certainly entitled for the opportunity of prosecuting the case on merits. In view of involvement of substantial rights and in view of the reasons mentioned supra, the judgments cited by the learned counsel for the respondents - Appeal is allowed.
1. Defendant in O.S.No.26 of 2004, on the file of the Court of the Senior Civil Judge, Sanga Reddy, Medak District, is the appellant in the present Civil Miscellaneous Appeal preferred under the provisions of Order 43 Rule 1 of the Code of Civil Procedure.
2. This appeal assails the order dated 16.04.2015 passed by the said Court in I.A.No.435 of 2012. The circumstances leading to the filing of the appeal are that the respondent herein instituted O.S.No.26 of 2004 against the appellant herein for specific performance of Agreement of Sale. The learned Senior Civil Judge, on 21.08.2006, rendered ex parte Judgment and Decree in the said suit, directing execution of Registered Sale Deed in favour of the plaintiff-respondent herein. Seeking to set aside the said ex parte judgment and decree dated 21.08.2006, the defendant-appellant herein filed I.A.No.435 of 2012 under the provisions of Order 9 Rule 13 of the Code of Civil Procedure. The plaintiff-respondent resisted the said application by filing a counter affidavit. The learned Senior Civil Judge, Sanga Reddy, dismissed the said I.A.No.435 of 2012 by order dated 16.04.2015.
3. The present appeal calls in question the validity and the legal sustainability of the said order passed by the learned Senior Civil Judge, Sanga Reddy.
4. Heard Sri Ali Farooq, learned counsel for the appellant and Sri B.Nalin Kumar, learned counsel for the plaintiff-respondent apart from perusing the material available before the Court.
5. It is contended by the learned counsel for the appellant that the order under challenge is erroneous, contrary to law and opposed to the spirit and object of the provisions of Order 9 Rule 13 of the Code of Civil Procedure. It is also the submission of the learned counsel that the defendant-appellant herein filed the application within time from the date of knowledge. It is further contended that the plaintiff had given wrong address though she had the knowledge of the correct address where the appellant is residing. It is also submitted that the defendant-appellant herein filed an application in the year 2004 in O.S.No.177 of 2003 filed by the husband of the plaintiff herein by showing the correct address and the Court below failed to take into consideration the said crucial aspect. It is further submitted that the Court below grossly erred in dismissing the application basing on the endorsement of the postal authorities on the alleged notice got issued by the plaintiff.
6. In support of his submissions and contentions, the learned counsel for the appellant places reliance on Muktar Ahmed Khan v. Margadarshi Chit Fund Limited Branch at Sangareddy and Others, 2002 Suppl. (1) ALD 682, K. Naveen Kumar v. M. Suresh Babu, 2009 (5) ALT 187, Sushil Kumar Sabharwal v. Gurpreet Singh and Others, AIR 2992 SC 2370, Bhagmal and Others v. Kunwar Lal and Others, AIR 2010 SC 2991 and Virender Singh Bahl v. Y.K. Kapoor, AIR 2001 Delhi 79.
7. On the contrary, it is vehemently contended by the learned counsel for the plaintiff-respondent herein that there is no error nor there exists any infirmity in the impugned order passed by the Court below, as such, the order under challenge is not amenable for any interference of this Court under Order 43 Rule 1 of the Code of Civil Procedure. It is the further submission of the learned counsel that in view of negligence on the part of the defendant-appellant herein, no indulgence can be shown in favour of the appellant. It is further contended emphatically by the learned counsel that since the appellant herein filed the application at a belated stage, the said application does not merit any consideration. It is also the submission of the learned counsel that there is absolutely no evidence on record placed by the appellant to show that the appellant got knowledge for the first time on 09.03.2012 as stated in the affidavit filed in support of the application. It is further contended that having refused to receive the suit notice, it is not open
