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Andhra High Court · body

2007 DIGILAW 532 (AP)

K. ALIVELAMMA v. K. SURYANARAYANA

2007-06-07

C.Y.SOMAYAJULU

body2007
( 1 ) AGGRIEVED by the dismissal of the petition under Rule 7 of Order 9 CPC to set aside the ex parte order passed against her, second defendant in a suit for specific performance preferred this revision. ( 2 ) THE case of the revision petitioner is that though she received summons in the suit, as her sons were looking after all the cases filed in various courts against her, she thought that her sons would look after this suit also and about 10 days prior to the filing of the petition she came to know that she was set ex parte as she did not file her written statement, and as she is informed that she has a good case and has to file a written statement contesting the suit, the ex pane order passed against her may be set aside and she may be given an opportunity to file her written statement and contest the suit. ( 3 ) FIRST respondent (plaintiff) opposed the application on the ground tnaf the petition is got filed by the sons of the revision petitioner to drag on the proceedings after the case is posted for arguments. ( 4 ) APART from the revision petitioner some of the defendants in the suit also filed petitions under Rule 7 of Order 9 CPC. The trial Court heard all those petitions and by a common order dated 31-1-2007 dismissed all the petitions on the ground that the petitioner who was set ias long back as on 17-9-1999 did not file her written statement till the case is posted for arguments, that too after the counsel for the contesting defendants took several adjournments for arguing their case. ( 5 ) THAT the revision petitioner was set ex parte on 17-9-1999 is an admitted fact. The petition to set aside the ex parte order is filed six years thereafter. The averment in the affidavit of the revision petitioner that as her sons were looking after her affairs she did not take interest in the suit seems to have been made only with a view to gain sympathy and is not really true. The petition to set aside the ex parte order is filed six years thereafter. The averment in the affidavit of the revision petitioner that as her sons were looking after her affairs she did not take interest in the suit seems to have been made only with a view to gain sympathy and is not really true. If really she was under the impression that her sons are looking after the case till the date of filing of the petition and did not take interest in the suit, why she suddenly took interest and tried to find out the progress of the suit only after the suit is posted for arguments is not explained by the revision petitioner in her affidavit. The sons of the revision petitioner, who are behind her, must have filed the petition through or in the name of the revision petitioner with a view to drag on the proceedings. ( 6 ) THE order under revision shows that the application for setting aside the ex parte order was filed after the counsel for the contesting defendants took about 15 adjournments for arguing the case. For filing of written statement the signatures of the defendant are required. Since the affidavit of the revision petitioner shows that several suits are pending against her, she can be imputed with knowledge that she has to sign her written statements in the suits. Why the revision petitioner did not enquire her sons about their not taking her signatures on the written statements is not explained. ( 7 ) OBVIOUSLY the contesting defendants, by taking the aid of the revision petitioner, want to put the clock back to drag on the proceedings. In view of the ratio in Sangram singh v. Election Tribunal, Kotah and another where the apex Court held "if a party does appear on the day to which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing. But though he has a right to appear at an adjourned hearing, he has no right to set back the hands of the clock. Order IX Rule 7 makes that clear. Therefore, unless he can show good cause, he must accept all that has gone before and be content to proceed from the stage at which he comes in. But though he has a right to appear at an adjourned hearing, he has no right to set back the hands of the clock. Order IX Rule 7 makes that clear. Therefore, unless he can show good cause, he must accept all that has gone before and be content to proceed from the stage at which he comes in. " which was followed in Arjun Singh v. Mohindra Kumar the revision petitioner can be permitted to participate in the proceedings from the stage at which she put in her appearance, but cannot be permitted to put back the hands of the clock by permitting to file her written statement and recalling the witnesses already examined, as the reasons for the laches and long silence and inaction on her part for more than six long years are not properly explained by her. ( 8 ) THEREFORE, granting liberty to the revision petitioner to participate in the proceedings from the stage at which she put in appearance, the revision is partly allowed. It is made clear that the revision petitioner cannot put back the hands of the clock back i. e. her written statement cannot be received and witnesses examined earlier cannot be recalled for further cross-examination on behalf of the revision petitioner. Parties are directed to bear their own costs. .