IMPORTANT POINT
The court emphasized the need for diligence in legal proceedings and allowed one opportunity for the defendant to contest the suit while balancing the rights of the parties involved.

ORDER :

(J. Sreenivas Rao, J.)

1. Aggrieved by the orders passed by the Senior Civil Judge, Mahabubabad in I.A. No.453 of 2022 in O.S. No.79 of 2018, dated 16.11.2023, petitioner/defendant No. 2 filed this Civil Revision Petition, invoking the provisions of Section 115 of C.P.C.

2. Heard Sri B.Balaji, learned counsel for the petitioner and Sri M.Mallikarjun Reddy, learned counsel appearing for respondents.

3. Revision petitioner herein is defendant No. 2 and respondents are plaintiffs in O.S. No.79 of 2018. For sake of convenience, the parties herein are referred to as they are arrayed in the suit before the Court below.

4. Learned counsel for the petitioner submits that plaintiffs filed suit vide O.S. No.79 of 2018 on the file of the Senior Civil Judge, Mahabubabad, seeking partition and separate possession of the suit schedule properties into equal shares and allot each 1/6th share, with all metes and bounds and other reliefs. In the said suit, defendant No. 2 was set ex-parte on 26.09.2019 for non filing of the written statement. Thereafter, the Court below passed ex-parte preliminary decree on 05.11.2020 in respect of item 3 of the schedule property i.e., Ac.3.24 gts and in respect of item Nos. 1 and 2, dismissed the suit by its judgment and decree dated 05.11.2020. Pursuant to the same, plaintiffs filed application vide I.A. Nos.548 and 549 of 2021 for passing final decree and also for appointment of Advocate Commissioner for ascertaining the main profits regarding partition of item No. 3 of schedule property into 6 equal shares. After receiving the notices in the said application defendant No. 2 came to know about passing of ex-parte preliminary decree. Immediately he filed application seeking set aside the ex-parte preliminary decree dated 05.11.2020, invoking the provisions of Order IX Rule 13 of C.P.C. Along with the said application, defendant No. 2 filed I.A. No.453 of 2022 under Section 5 of Limitation Act seeking condonation of delay of 722 days.

5. Learned counsel further submits that defendant No. 2 could not file the written statement within the stipulated time, due to his ill health, and the Court below passed ex-parte preliminary decree during Covid-19 pandemic. Defendant No. 2 explained the reasons in support of the application. The Court below without properly considering the same erroneously dismissed the application by its order dated 16.11.2023, by virtue of the same, defendant No. 2 is foregoing his legitimate rights to contest the suit proceedings and also to safeguard his property, on the ground that item 3 of scheduled property is absolute property and the plaintiffs are not entitled any share. He further submits that along with the set aside application, defendant No. 2 filed written statement.

6. Per contra, learned counsel appearing for respondents contended that defendant No. 2 after receiving summons he engaged the counsel and he has not filed written statement inspite of giving reasonable opportunity and he was set ex-parte on 26.09.2019. Defendant No. 2 has not chosen to file application within the stipulated time and he filed present application i.e., I.A. No.453 of 2022 with a delay of more than 722 days seeking to set aside the preliminary decree dated 05.11.2020, without giving valid reasons and also he has not filed any evidence in support of the application.

7. He further contended that after passing preliminary decree, plaintiffs filed applications vide I.A. Nos.548 and 549 of 2021 for passing final decree. In the said proceedings also defendant No. 2 after receiving notices he had not chosen to contest the said proceedings and he was set ex-parte and the Court below appointed Advocate Commissioner for partition of item No. 3 of schedule property and the Court below rightly dismissed the application.

8. Having considered the rival submissions made by the respective parties and after perusal of the material available on record, it clearly reveals that the plaintiffs and defendant No. 2 are none o