Important Point—Where grounds for condonation of delay and for setting aside an ex parte decree are same, it would not be necessary to file a separate application for condonation of delay.

1. This Revision Petition under Section-115 CPC arises out of the order dated 07.11.2016 of the learned II Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar, in I.A.No.1156 of 2014 in O.S.No.555 of 2013. The said suit was filed by the respondent herein for specific performance of the alleged agreement of sale dated 13.10.2012 and was decreed ex parte on 01.04.2014. The petitioner herein, the defendant in the suit, filed I.A.No.1156 of 2013 therein under Order 9 Rule 13 CPC to set aside the said ex parte decree by condoning the delay of 189 days in applying for the same. By the order under revision, the Court below dismissed the said I.A.

2. Conventional means of service having failed, substituted service of notice was effected upon the respondent/plaintiff by publication thereof in Eenadu Telugu Daily newspaper, L.B.Nagar Edition. The respondent/plaintiff however did not choose to enter his appearance before this Court either in person or through counsel.

3. Perusal of the order under revision reflects that the Court below dismissed the I.A mainly on the ground that the petitioner/defendant had failed to file separate applications, one under Section 5 of the Limitation Act, 1963, seeking condonation of delay, and the other under Order 9 Rule 13 CPC to set aside the ex parte decree. The Court below further found that sufficient grounds had not been shown by the petitioner/defendant to set aside the ex parte decree.

4. The issue that falls for consideration presently is whether one single application could have been filed by the petitioner/defendant for condonation of the delay and also to set aside the ex parte decree.

5. At the outset, it may be noted that Rule 55 of the Civil Rules of Practice and Circular Orders, 1980 (for brevity, ‘the Rules of 1980’), provides that separate applications must be filed for each distinct relief prayed for, but goes on to state that the same would not be necessary if the reliefs sought are consequential.

6. Reliance was placed by the Court below on S. SEKHAR BABU V/s. Y. RAMAKRISHNA REDDY (2007 (6) ALD 819 = 2008 (1) ALT 475) in support of its conclusion that two separate applications had to be filed for the reliefs sought. Perusal of S.SEKHAR BABU1 reveals that the earlier decision of this Court in M. NARASIMHA REDDY V/s. BEGARI SAMUEL (2002 (6) ALD 473 = 2002 (5) ALT 766), which held to the contrary, was distinguished on facts. However, the basis for the ratio in M.NARASIMHA REDDY2, to the effect that two such separate applications need not be filed, was the earlier decision of a Division Bench of this Court in M.A. QADER V/s. MD.AZMAT ALI (1988 (1) ALT 783). Therein, it was held that where the grounds for condonation of delay and for setting aside an ex parte decree were the same, it would not be necessary to file a separate application for condonation of delay. The Division Bench observed that the power to do so vests in the Court and if sufficient material is placed before the Court, wherefrom the required satisfaction can be gleaned, the Court can admit the set aside petition even after the period of limitation. The Division Bench further pointed out that Section 5 of the Limitation Act, 1963, does not in terms say that a separate application should be filed. Despite this edict being culled out in M.NARASIMHA REDDY (supra), the learned Judge who decided S.SEKHAR BABU (supra) distinguished between the cases on the short ground that the defendant in M.NARASIMHA REDDY (supra) was not served with summons unlike the defendant in S.SEKHAR BABU1 and therefore, filing of a condone delay petition was held to be not even necessary in the earlier case. Significantly, the learned Judge also failed to take note of KAVALI NARAYANA V/s. KAVALI CHENNAMMA (2005 (1) ALT 805), wherein another learned Judge affirmed and followed the principle laid down in M.NARASIMHA REDDY (supra). The learned Judge observed therein that as per Rule 55 of the Rules of 1980, filing of individual applicati