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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
A. Venkateshwara Reddy, J.
Smt. Lade Krishnamma – Petitioner
Versus
Adharsandi Padma – Respondent
CRP Nos.2134 and 2928 of 2019
Decided On : 15-03-2022
Limitation Act - Application to Set Aside Ex Parte Decree - Order-IX, Rule-7 r/w Sec.151 of CPC - [FACT OF THE CASE] The defendants failed to file a written statement in response to a partition suit and were set ex parte. They filed applications to set aside the ex parte decree, which were dismissed for not being accompanied by a petition under Section 5 of the Limitation Act. Subsequently, they filed another application under Section 5 of the Limitation Act to condone the delay. The trial Court dismissed this application as well. [FINDING OF THE COURT] The Court allowed the application conditionally, granting the defendants one more opportunity to contest the original suit on heavy terms. [ISSUES] The main issue was whether the defendants should be allowed to set aside the ex parte decree. [RATIO DECIDENDI] The Court held that the defendants were entitled to one more opportunity to contest the suit, considering the nature of the original suit for partition and the pending final decree proceedings. [FINAL DECISION] CRP No.2928 of 2019 was dismissed, and CRP No.2134 of 2019 was allowed conditionally.
ORDER :
1. Both the Civil Revision Petitions are arising out of Original Suit No.179 of 2015 on the file of the learned I Additional Senior Civil Judge, Warangal. Accordingly, it is proposed to dispose of both the CRPs, through this common order.
2. CRP No.2134 of 2019 is filed assailing the order dated 10.04.2019 in SR No.6064 of 2018 in OS No.179 of 2015 filed under Section 5 of Limitation Act read with Section 151 of the Civil Procedure Code, 1908 (for short ‘CPC’) to condone the delay of 482 days in filing an application to set aside the ex parte decree passed against the petitioners/defendants 1 & 2 on 31.07.2017 and to permit the defendants to defend the suit in the interest of justice. Feeling aggrieved by the rejection of the said I.A. at numbering stage, the CRP is filed.
3. CRP No.2928 of 2019 is filed assailing the order dated 22.10.2018 in IA No.550 of 2018 in OS No.179 of 2015 under Order-IX, Rule-7 r/w Sec.151 of CPC to set aside the ex parte order dated 29.09.2015 and to permit the defendants to file the written statement. Aggrieved by the dismissal of the said application, this CRP is filed.
4. For the sake of convenience, the parties are hereinafter referred to as plaintiff and defendants as arrayed in the original suit.
5. Heard the learned counsel on both sides. Detailed submissions have been made on both sides which are more or less on pleaded lines. Therefore, it may not be necessary to refer such submissions in detail. However, they are received due consideration of the Court. Perused the material available on record.
6. The plaintiff has filed original suit No.179 of 2015 for partition and separate possession of the plaint schedule properties among the plaintiff and defendant Nos.1 & 2 and for allotment of 1/3rd share to each of them. In the original suit, though suit summons were served on the defendants, they failed to file the written statement and remained absent, as such they were set ex parte on 29.09.2015. They have filed an application in IA No.550 of 2018 under Order-IX, Rule-7 r/w Sec.151 of CPC to set aside the said ex parte order against them.
7. The main averments of the affidavit filed in support of the application are that the suit was posted on 29.09.2015 for filing the written statement. The first defendant was aged about 70 years and she was seriously bed-ridden, could not ask their advocate to draft the written statement. They have come to know about the passing of decree on receipt of notice in final decree proceedings in IA No.32 of 2017, as such the delay is caused in filing the application to set aside the ex parte decree. The ex parte preliminary decree was passed on 31.07.2017. Thereafter, IA No.32 of 2017 is filed for passing final decree, then the defendants 1 & 2 have come to know about it and accordingly they have filed the application under Oder-IX, Rule-17 r/w Section 151 of CPC. That application was dismissed by the Court below with the following observation at para-7 of the order impugned in IA No.550 of 2018:
8. Thus, the above application filed under Order-IX, Rule-7 CPC without filing an application u/s.5 of Limitation Act and without explaining the delay was not considered by the Court below, as the defendants have failed to file
The Court may grant one more opportunity to set aside an ex parte decree on heavy terms, considering the nature of the original suit and the pending final decree proceedings.
Point of law: Once court accepts explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisiiona....
The sufficiency of the cause for delay is the primary criterion for condoning delay under the Limitation Act, not merely the length of the delay.
Negligence in pursuing legal rights disqualifies parties from condoning lengthy delays in appeals, proving insufficient cause under procedural law.
The court reaffirmed that substituted service under the Code of Civil Procedure does not constitute adequate service, necessitating substantiation of claims in applications for condonation of delay.
The judgment emphasizes the need for substantial justice over technical considerations, warranting a full-length trial to investigate rival claims and the theory of probability.
The main legal point established in the judgment is the need for a liberal construction of 'sufficient cause' under Section 5 of the Limitation Act to advance substantial justice and remove injustice....
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