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2006 DIGILAW 256 (AP)

Satyamma v. C. Lalitha Bai

2006-02-24

L.NARASIMHA REDDY

body2006
( 1 ) THESE two revisions arise under similar circumstances. ( 2 ) THE respondent in both the revisions filed the suits in the Court of VIII junior Civil Judge, City Civil Court, hyderabad, for declaration of title and eviction of the 1 st petitioner, in the respective c. R. Ps. The 2nd petitioner is common, and he is impleaded as a proforma party, since the tenants stated that the 2nd petitioner is their landlord. The trial of the suits commenced, and PWs. l to 5 were examined on behalf of the respondent herein. At the stage of cross-examination of PW-5, the suit underwent several adjournments. Ultimately, the trial Court decreed the suits, through judgment dated 18-11-2005. The petitioners tiled applications under Order 9 rule 13 C. P. C. , to set aside the said decree. Since there was delay in submission of the application, they filed a petition under section 5 of the Limitation Act. The trial Court dismissed the application, holding that, what were passed on 18-11-2005, are not ex parte decrees, and that there are no bona fides on the part of the petitioners. ( 3 ) HEARD the learned Counsel for the petitioners and learned Counsel for the respondent. ( 4 ) THE only question that falls for consideration in these C. R. Ps is, as to whether the judgment and decrees dated 18-11-2005 fall under Rule 2 or 3 of order 17 C. P. C. If the mater is governed by Rule 3 alone, the petitioners shall have to file a regular appeals, since the decrees cannot be treated as having been passed exparte. On the other hand, the matter falls under Rule 2, or Rules 2 and 3, the decrees deserve to be treated as ex parte, and the present applications become maintainable. ( 5 ) A perusal of the judgment dated 18-11-2005, as well as the order under revision discloses that, on the relevant date, the Counsel for the petitioners herein was present, but did not proceed with the cross- examination of PW-5. He is said to have filed an application, seeking adjournment of the suits. This situation attracts Rule 3 of order 17, since there was failure on the part of the petitioners herein, to adduce evidence, and that there is a representation on their behalf. He is said to have filed an application, seeking adjournment of the suits. This situation attracts Rule 3 of order 17, since there was failure on the part of the petitioners herein, to adduce evidence, and that there is a representation on their behalf. Simultaneously, it attracts rule 2 also, inasmuch as there was a default, on the part of the petitioners in cross-examining PW-5. ( 6 ) A proviso is added to Rule 3 of order 17 C. P. C. , insofar as it applies to state of A. P. , which is to the effect that in cases, where the situation, attracts Rules 2 and 3, of Order 17, steps shall be taken, only as provided for, under Rule 2. In such an event, the facility of filing an application under Order 9 of Rule 13, would be available to the aggrieved party. The case on hand is governed by the proviso to Rule 3 of order 17 C. P. C. ( 7 ) IN that view of the mater, the c. R. Ps. are allowed, and the order under revision is set aside. ( 8 ) TO avoid further complication in the matter, the applications are considered on merits. This Court is satisfied that the delay is properly explained. Hence, it is directed that the delay in filing the application under Order 9 Rule 13 C. P. C. , is condoned; the ex parte decrees set aside, and the suits shall stand restored to the stage of cross-examination of PW-5, subject to the condition that the petitioners shall pay costs of Rs. 1,000/- (Rupees one thousand only) in each suit, to be paid to the learned counsel for the respondent. ( 9 ) IT is further directed that with effect from March 2006, the respondent shall deposit rents to the credit of the respective suits. The trial Court shall proceed to dispose of the suits before the end of june 2006. There shall be no order as to costs.