Point of law: when substantial rights in immovable property are involved, sustaining ex parte decree is not admissible and it is always better to have a decree on merits. The learned trial Court did not exercise its jurisdiction properly for appreciation of the facts in dispute and thereby committed material irregularity

ORDER :

G. Sri Devi, J.

1. The present Civil Revision Petition is filed under Section 115 of C.P.C., aggrieved by the order, dated 07.06.2018 passed in I.A. No. 30 of 2016 in O.S. No. 1144 of 1988 on the file of the V-Senior Civil Judge, City Civil Court, Hyderabad, wherein and whereunder the application filed by the petitioner/2nd defendant under Section 5 of Limitation Act to condone the delay of 5767 days in filing the petition to set aside the ex parte decree, dated 15.02.1999, passed in O.S. No. 1144 of 1988, was dismissed.

2. The 1st respondent/plaintiff filed O.S. No. 1144 of 1988 against the petitioner/2nd defendant and 2nd respondent/1st defendant for specific performance of contract dated 26.04.1985 in respect of the suit schedule property i.e., the land admeasuring Ac. 2.00 out of Ac. 16.09 guntas, covered by Sy. No. 129/68 Paiki, situated at Shaikpet Village, Hyderabad. The said suit was decreed ex parte on 15.02.1999. The petitioner/2nd defendant filed a petition under Order IX Rule 13 of the C.P.C. for setting aside the said ex parte decree along with the present petition to condone the delay caused in filing said the petition to set aside the ex parte decree. In the affidavit filed in support of the petition, it is stated by the petitioner/2nd defendant that the suit was field for specific performance based on the document styled as "Memorandum of Composition and Settlement Deed", dated 26.04.1985, which was alleged to have been signed by the petitioner/2nd defendant along with the 1st defendant and one Mrs. Qamarunnisa Begum. It is further stated said document is a created and fabricated document and that one P. Hanumantha Rao, Notary, who stated to have authenticated the said document is not in existence at all and that the alleged document is in the nature of relinquishment deed, which requires stamp duty and registration, but, the same is an unregistered one and written on a plain paper and, therefore, the same is not admissible in evidence. It is also stated that she is a pardanashin lady and an illiterate and she cannot put her signature and she only affixes the thumb impression and that she did not appear before any advocate and affixed her signature on any vakalatnama and that the 2nd respondent/defendant No. 1, who was her brother, had participated in the case for about ten years, but, it appears that his palms have been greased subsequently and, therefore, he remained ex parte and allowed the suit to be decreed. It is further stated that on 17.12.2015, some persons approached the petitioner/2nd defendant and offered to give Rs. 10,00,000/- if she executes a sale deed in their favour and when she refused, the said persons declared that they have succeeded in a suit and challenged her to get the same verified by giving the suit number written on a piece of paper; that on the same day, she directed her son to verify about the genuineness of the claim made by the said strangers and that her son immediately contacted Mr. K.S. Kumar, Advocate, on 18.12.2015 and after verifying the record by the said advocate, she was informed that in the vakalat below the name of respondent No. 1/defendant No. 1, there is another signature allegedly affixed by her and then she could realise that a systematic fraud has been played not only on her but also on the Court. It is further stated that the suit schedule property costs several Crores of rupees in the market and since the delay is an outcome of fraud and rank forgery, no prejudice would be caused to the 2nd respondent herein, who is the fulcrum of fraud, if the delay is condoned and that there are several aspects of fraud involved in the case and, therefore, the delay caused in filing the petition to set aside the ex parte decree may be condoned and she may be given an opportunity to get the dispute adjudicated on merits.

3. In the additional affidavit filed by the Counsel for the petitioner/defendant No. 2, it is stated that right from the date of institution of the suit,