THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI CIVIL REVISION PETITION NO.1782 OF 2025

O R D E R

This Civil Revision Petition is filed against the order of the trial Court, i.e., Additional Junior Civil Judge at Gajwel dt.12.02.2025 in I.A.No.422 of 2023 in O.S.No.295 of 2022 setting aside the ex parte decree passed on 09.11.2022 by condoning the delay of 255 days on payment of costs of Rs.5,000/- to the opposite party and further directing the petitioners therein/defendants in the suit to file the written statement within one week from the date of the order.

2. Brief facts of the case are that the petitioner herein is the plaintiff and has filed the suit O.S.No.295 of 2022 for permanent injunction against the defendants therein along I.A.No.95 of 2022 for ad interim injunction. Vide orders dt.08.06.2022, the trial Court granted ad interim injunction. Subsequently, as the defendants did not turn up in spite of service of notices, they were set ex parte and ex parte judgment and decree were passed on 09.11.2022. But, when the judgment debtors tried to interfere with the possession of the plaintiff over the suit schedule property, the petitioner approached the police for action. But the police did not initiate any action on the ground that the matter is civil in nature. Therefore, the plaintiff filed E.P.No.7 of 2023 to protect his rights over the property. The petitioner also filed E.A.No.2 of 2023 for police protection. At this juncture also, when notices were sent to the defendants/judgment debtors and were served on 27.03.2023, they refused to receive them and therefore, the defendants were set ex parte and after examining the witnesses on behalf of the plaintiff, the trial Court held that the judgment debtors 1 to 3 have violated the decree passed in favour of the decree holder. Thus, the EP was allowed and it was held that the judgment debtors 1 to 3 are liable for the civil imprisonment for 15 days. Thus, warrant was issued to the judgment debtors and consequently on 13.07.2023, the defendants were produced before the Court, they have given an undertaking that they will obey the Court orders. Thereafter, the defendants filed I.A.No.422 of 2023 under Section 5 of the Limitation Act read with Section 151 of CPC for condoning the delay of 255 days in filing the petition to set aside the ex parte decree dt.09.11.2022 and also to set aside the ex parte decree. The trial Court has allowed the same subject to payment of costs of Rs.5,000/- to be paid to the opposite party and aggrieved, the plaintiff has filed the present Civil Revision Petition.

3. Learned counsel or the petitioner submitted that the defendants were very much aware of the pendency of the suit when the notices were served on them in the suit, but they chose not to appear before the Court and therefore, ex parte judgment and decree dt.09.11.2022 were passed and even in the E.P., when the notices were sent, they have refused to take the same and hence, they were set ex parte in the EP also and for trespassing into the petitioner’s land, arrest warrant was issued. It is submitted that the judgment debtors thereafter have given an undertaking that they would not interfere with the possession of the plaintiff over the suit schedule property and therefore, they are precluded from filing the present I.A.No.422 of 2023. He submitted that the trial Court ought not to have condoned the delay of 255 days and ought not to have set aside the ex parte decree. He placed reliance upon the following decisions in support of his contention that when there is a wilful breach of the undertaking given by the defendants, it amounts to contempt of Court and the delay ought not to be condoned and ex parte decree ought not to have been set aside.

(1) State of Maharashtra and others Vs. Shri Vithu Kalya Govari

and others, AIR 2009 (NOC) 1008 (Bom.)

(2) Suman Chadha and another Vs. Central Bank of India, AIR 2021 SC 3709 (3) Basawaraj and another Vs. Special Land Acquisition Officer, (2013) 14 SCC