THE HONOURABLE SRI JUSTICE T.VINOD KUMAR AND THE HONOURABLE SMT. JUSTICE P.SREE SUDHA CIVIL MISCELLANEOUS APPEAL No.8 of 2025

JUDGMENT:

(per Hon’ble Smt. Justice P.Sree Sudha)

This Civil Miscellaneous Appeal is filed against the Order dated 17.10.2024 in I.A.No.423 of 2022 in O.S.No.220 of 2017 passed by the learned IV-Additional District Judge, Ranga Reddy District, at L.B.Nagar.

2. The appellant herein/defendant No.1 has filed an application against the respondents herein before the trial Court vide I.A.No.423 of 2022 in O.S.No.220 of 2017, under Order 9 rule 13 R/w. Section 151 of CPC, for setting aside the ex-parte decree dated 04.02.2022 passed in O.S.No.220 of 2017. The trial Court after considering the arguments of both sides dismissed the application. Aggrieved by the said Order, appellant has preferred the present Civil Miscellaneous Appeal.

3. Learned Counsel for the appellant mainly contended that the trial Court ought to have taken liberal approach for sufficient cause and allowed the application under Order 9 rule 13 CPC, as per the citation reported in (2000) 3 SCC 54 in the case of G.P.Srivasthava Vs.R.K.Raizada . Summons were not served upon the appellant till he received notices in I.A.No.321 of 2022 and it is the sufficient cause to set aside the ex-parte decree. Appellant is having substantial right over the suit schedule property, as such ex-parte decree cannot be passed in a suit for partition. Therefore, requested the Court to set aside the ex-parte decree passed by the trial Court.

4. Parties herein are referred as appellant/defendant No.1, respondents No.1 and 2/plaintiffs and respondents No.3 to 5/defendants No.2 to 4, as arrayed before the trial Court in O.S.No.220 of 2017, for the sake of convenience.

5. Plaintiffs filed the suit vide O.S.No.220 of 2017, against the defendants for partition, separate possession and declaration. It is stated in the suit that plaintiffs and defendant No.1 are closely related to each other. The father of plaintiffs and the father of defendant No.1 are real brothers. It seems that plaintiffs and defendant No.1 purchased the suit schedule property together. However, defendants No.3 and 4 have filed a suit for specific performance against the suit B-Schedule property. Defendant No.1 executed an agreement of sale in favour of defendants No.3 and 4. It is also admitted by the plaintiffs that defendant No.1 was in physical possession of the original documents with respect to the suit A, B and C Schedule properties and requested for 1/3rd share in the suit schedule property and also to declare the agreement of sale as null and void and not binding on them.

6. In the Judgment dated 04.02.2022, passed in O.S.No.220 of 2017, the trial Court observed that defendant No.2 had also filed a suit vide O.S.No.741 of 2015, for specific performance of contract, against the plaintiffs and defendant No.1. It was specifically observed that in spite of service of summons, defendant No.1 did not choose to appear before the Court and hence he was set ex-parte on 20.04.2017. Though the defendant No.2 made his appearance by engaging an Advocate, he did not choose to file the written statement and thus he was set ex- parte on 27.10.2017. The defendants No.3 and 4 filed their written statement, but the suit against defendants No.3 and 4 was not pressed, as the Counsel for the plaintiffs filed a memo, not pressing the suit against defendants No.3 and 4. The trial Court partly decreed preliminarily partitioning the suit schedule A, B and C properties into three equal shares and allotted 1/3^rd share each to plaintiffs and defendant No.1.

7. I.A.No.423 of 2022 in O.S.No.220 of 2017 was filed by the defendant No.1 to set aside the ex-parte decree passed in O.S.No.220 of 2017. Defendant No.1 stated that he received notices in I.A.Nos.312 and 322 of 2022, through registered post on 20.05.2022 and copies of the said application through Court on 14.06.2022, then only he came to know about the filing of the suit