The Hon’ble Smt. Justice Renuka Yara Civil Revision Petition No.3834 of 2024

Order:

This Civil Revision Petition is filed by the petitioner/appellant aggrieved by the judgment and decree passed by the learned X Additional Chief Judge, City Civil Court, Hyderabad in C.M.A.No.81 of 2018, dated 22.09.2023, wherein, the said appeal filed under Order 43, Rule 1 (r) of CPC, has been dismissed confirming the order and decree passed in I.A.No.143 of 2017 in O.S.No.1382 of 2015, dated 03.08.2017 by the VIII Junior Civil Judge, City Civil Court, Hyderabad.

2. Heard Sri Habeeb Jaffar Bin Hasan, learned counsel for the revision petitioner. Even though notice has been served, none appeared for the respondents.

3. The brief facts of the case are that the respondents herein have filed a suit for eviction in O.S.No.1382 of 2015 and said suit was decreed ex-parte on 18.07.2016. The petitioner herein claimed that he never received summons in the suit either through Court or through post office. The petitioner learned about the suit only when bailiff of the Court came along with police to evict him and the petitioner was forcibly evicted on 13.02.2017 without giving an opportunity to contest the suit on merits. The counsel for the petitioner verified the record and found that no process form or report of the bailiff or process server and there are no return postal covers to prove that the notice is served on the petitioner i.e. the respondents have managed the Court process to get ex-parte order. In E.P proceedings, the bailiff filed a false report that the petitioner herein has refused to vacate the suit schedule property when he was shown with ex-parte decree. Therefore, police protection was granted. It is alleged that there is no process service report, no summons were served and he was set ex- parte through paper publication in I.A., but, not in the suit. The publication was made in Siyasath Urdu daily on 12.04.2015 but said paper is not circulated in the area where the petitioner resides. The petitioner is a reader of Munsif Urdu daily and as such, he never get notice about such publication and he was forcibly evicted on 13.02.2017. A suit vide O.S.No.22 of 2015 was filed against the respondents herein on the file of the XVIII Senior Civil Judge, City Civil Court, Hyderabad, wherein, I.A.No.31 of 2015 was filed and the same was allowed on merits and temporary injunction has been granted. Aggrieved by the same CMA No.31 of 2015 is preferred and the same is pending. In spite of the same, the respondents have got him evicted without serving summons for eviction.

4. The contention of the petitioner is opposed by the respondents herein alleging that a notice to quit was given prior to filing of the suit to meet the requirement under Section 106 of T.P.Act, that upon receipt of the said notice, the petitioner herein filed a suit for perpetual injunction such that he shall not be evicted without following due process of law. A temporary injunction was sought and it was made absolute in favour of the petitioner. Then, suit for eviction was filed. In spite of giving several opportunities to appear before the Court, there was no appearance by the petitioner and therefore, judgment and decree were passed. Subsequently, when notices were sent in E.P., the petitioner herein refused and also protested execution of warrant and therefore, police protection was granted and the schedule property is delivered. It is further submitted that the I.A to set aside the ex-parte decree is not maintainable as the same is time barred and an application filed without a petition under Section 5 of Limitation Act is barred. Upon considering the case of both the parties, the learned VIII Junior Civil Judge, City Civil Court, Hyderabad dismissed the I.A filed to set aside the ex-parte decree. Aggrieved by the same, CMA No.81 of 2023 was filed. The learned Appellate Court after considering the rival contentions dismissed the CMA leading to filing of the present revision pet