THE HON’BLE SRI JUSTICE NAGESH BHEEMAPAKA CIVIL MISCELLANEOUS APPEAL No.203 of 2024

JUDGMENT

This Appeal is filed against the Order dated 28.02.2024 passed by the II Additional Chief Judge, City Court, Hyderabad (for short, the trial Court), in I.A.No.1547 of 2019 in O.S.No.470 of 2013. By the order impugned, the trial Court dismissed the Application filed by the appellants/defendants under Order 9 Rule 7 of Code of Civil Procedure, to set aside the ex parte order dated 06.02.2015. For the sake of convenience, the parties will be referred to as they were arrayed before the trial Court.

2. Heard Mr. G. Shashidhar Reddy, learned counsel for the appellants/defendants; and Mr. T.S. Murthy, learned counsel for the respondent/plaintiff. Perused the record.

3. Brief facts of the case are that the defendants executed a registered Agreement of Sale vide Document No.2968/2008 dated 03.11.2008 for sale of a Flat of 1793 Square Feet in Vijetha Fortune, Narayanaguda, Hyderabad, by receiving a Sale consideration of Rs.39,00,000/- out of the total sale consideration Rs.40,00,000/-, and as per Clause No.3 and 4 of the Agreement of Sale, the defendants are required to deliver the possession of the suit schedule property after completion of construction. However, as the defendants failed to honour the Agreement of Sale, the plaintiff filed the Suit before the trial Court on 27.06.2013. Notices were sent on the address of the defendants but to no avail, and a paper publication was issued on 26.09.2014. The trial Court had extended the period for filing the Written Statement till 02.02.2015 and thereafter the defendants were set ex parte on 06.02.2015, and proceeded with the evidence of plaintiff, and after making of documents and final arguments, the trial Court reserved the matter for judgment on 02.12.2019. While so, the defendants filed an Application under Order 9 Rule 7 of CPC stating that the plaintiff filed a case against them in C.C.No.168 of 2012 on the file of IX Special Magistrate, Hyderabad, under Section 138 of the Negotiable Instruments Act, and the documents they sought to rely on could not be marked in the said C.C.No.168 of 2012 due to opposition by the plaintiff and finally they got marked the documentary evidence, and they could not obtain certified copies of the same, but now they got the copies and got prepared their written statement and therefore seek to set aside the ex parte order dated 06.02.2015. The trial Court dismissed the Application;

hence this Appeal.

4. Learned counsel for the appellants/defendants would contend that the defendants filed the Application under Order 9 Rule 7 CPC along with their written statement and certified copies of documents on 02.12.2019; that even after ex parte order dated 06.02.2015, the plaintiff was not ready to lead evidence for about four years and that delay cannot be attributed to the defendants; that the plaintiff filed a criminal case in C.C.No.168 of 2012 with a similar cause of action and the trial went on until 2019; that a tripartite agreement has been reached with the plaintiff settling his claim under the Agreement of Sale thereby cancelling the Agreement of Sale; that the trial Court did not appreciate the facts pleaded by the defendants with regard to the delay caused, in proper perspective; that the trial Court ought to have given the defendants a fair chance to contest the case and therefore the dismissal of the Application filed under Order 9 Rule 7 CPC is illegal, arbitrary and liable to be set aside.

5. Learned counsel for the respondent/plaintiff, on the contrary, contends that the Suit was filed in the year 2013 and summons were sent on the address of the defendants on 25.10.2013, 27.11.2013, 11.02.2014, and 02.06.2014; that the defendants failed to honour the summons, and a paper publication was issued on 26.09.2014; that the defendants failed to file their written statement even within the enlarged period granted by the trial Court until 02.02.2015; that the plaintif