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2008 DIGILAW 739 (AP)

B. Sameerun v. Kotia Hirai Basha

2008-09-06

L.NARASIMHA REDDY

body2008
JUDGMENT: The respondent filed OS No.479 of 2002 in the Court of Principal Junior Civil Judge, Proddatur, against the petitioners, for the relief of specific performance of an agreement of sale, dated 19.1.1998, said to have been executed by the husband of the 1st petitioner and father of petitioners 2 to 5. The trial Court had set petitioners 1 to 3 ex parte. Since petitioners 4 and 5 were minors, at the relevant point of time, an Advocate was appointed as Guardian for them and a written statement is said to have been filed on their behalf. The suit was ultimately decreed ex parte on 20.6.2005. 2. The petitioners filed an application under IX Rule 13 CPC., to set aside the ex parte decree, dated 20.6.2005. They have also filed IA No.831 of 2006, under Section 5 of the Limitation Act, to condone the delay in presenting the said application. The trial Court dismissed the L.A. through its order, dated 5.4.2007. The petitioners filed CMA No.15 of 2007 in the Court of II Additional District Judge, Kadapa at Proddatur, against the order in LA. No.831of 2006. The same was dismissed on 14.12.2007. Hence, this civil revision petition. 3. Learned Counsel for the petitioners submits that the delay in presenting the application was wrongly mentioned as 1348 days, though the application was filed hardly within 8 months, from the date of the ex parte decree. He further submits that the trial Court had furnished a detailed account of the events in the suit and it is not evident that the 1st petitioner was either served with summons in the suit, or was set ex parte. He contends that the appointment of Guardian by the trial Court for petitioners 4 and 5 was contrary to law and the fact that even the Guardian reported no instructions, discloses the prejudice, to which they were put. He also submits that the Courts below ought to have taken into account, the fact that the petitioners are residents of a distant place and no serious effort was made to ensure service of summons on them. 4. Learned Counsel for the sole respondent, on the other hand, submits that the summons were sent through registered post and when some of the petitioners herein were not served, substituted service was effected with the permission of the trial Court. 4. Learned Counsel for the sole respondent, on the other hand, submits that the summons were sent through registered post and when some of the petitioners herein were not served, substituted service was effected with the permission of the trial Court. He contends that though all the petitioners remained ex parte, the trial Court had appointed the guardian, to protect the interests of minors. He further submits that twice, effort was made to settle the matter through Lok Adalat. He contends that the petitioners have refused to appear before the Court, even after receiving summons. 5. The application filed by the petitioners under Section 5 of the Limitation Act was for condonation of 1348 days of delay. There is some uncertainty, as to the nature of relief claimed by them. The record discloses that petitioners 2 and 3 were set ex parte on 25.2.2003. While nothing is evident, about the manner, in which the 1st petitioner was dealt with, petitioners 4 and 5 were not set ex parte at all. The L.A., was presented by the. petitioners on 27.3.2006. If the period is calculated from 25.2.2003, till the date of filing of the IA., the delay would be about 1350 days. The fact, however, remains that the steps initiated by the petitioners were to set aside the ex parte decree, dated 20.6.2005. If that date is taken into account, the delay would of about 250 days. Since the petitioners prayed for condonation of delay of 1348 days, the parameters were naturally different and stringent. 6. The petitioners are not the residents of the place, where the trial Court is situated. It is not in dispute that all of them, are residents of Tirupati. The trial Court had furnished a very detailed account of the various steps, that have taken place, between the presentation of the plaint and the date of the decree. By 20.1.2003, petitioners 4 and 5 were minors. They were treated as having been served with summons. Further steps were directed against petitioners 2 and 3 and it was adjourned to 24.1.2003. On that day, publication in Prajasakthi Daily was ordered. On 25.2.2003 the publication was produced, petitioners 2 and 3 were called absent, and were set ex parte. The Court itself had appointed a Guardian for petitioners 4 and 5, who were minors, and a written statement was filed on their behalf. On that day, publication in Prajasakthi Daily was ordered. On 25.2.2003 the publication was produced, petitioners 2 and 3 were called absent, and were set ex parte. The Court itself had appointed a Guardian for petitioners 4 and 5, who were minors, and a written statement was filed on their behalf. The matter was referred twice to the Lok Adalat on 3.5.2003 and 21.6.2003, and the attempt did not fructify. 7. The suit was taken up for trial on 30.3.2004 and PWs.2 and 3 were examined on 21.9.2004. The Counsel for defendants 4 and 5 filed a memo, stating that he has no evidence to adduce. Ultimately, the decree came to be passed. Though it is supported by a detailed judgment, it partakes the character of an ex parte decree. 8. The manner, in which, the suit was proceeded with, does not appear to be proper. If the defendants remained ex parte, there would have been every justification for the trial Court to pass ex parte decree or to take other steps. The docket sheet is silent as to how the 1st petitioner was dealt with. On its own accord, it appointed a guardian for petitioners 4 and 5. It hardly yielded any result, inasmuch as a semblance of written statement was filed and no evidence was adduced. This Court gains an impression that a calculated effort was made on behalf of the respondent, to obtain an apparent decree on merits. The trial Court ought to have exhibited little more care and caution. 9. Be that as it may, now that all the parties are before this Court, it is better that they are made to participate in the suit, by duly putting them on terms. It is represented that the costs of the suit have already been deposited to the credit of the suit. In addition to that, the petitioners may be required to deposit a further sum of Rs.5,000/- and to file a written statement within three weeks from today, duly setting aside the ex parte decree. The transactions, if any, that have taken place after the date of institution of the suit cannot be treated as any factors to defeat the decree, if emerges, after trial. 10. The transactions, if any, that have taken place after the date of institution of the suit cannot be treated as any factors to defeat the decree, if emerges, after trial. 10. For the forgoing reasons, the civil revision petition is allowed and the order, dated 14.12.2007, in CMA No.15 of 2007 on the file of the learned II Additional District Judge, Proddatur, and the one, dated 5.4.2007, in IA No.831 of 2006 in as No.479 of 2002 on the file of the learned Principal Junior Civil Judge, Proddatur, are set aside. Consequently, IA No.831 of 2006, shall stand allowed. To avoid further complications, the ex parte decree, dated 20.6.2005, as well as the order, dated 25.2.2003, setting some of the petitioners ex parte are set aside. The petitioners shall file a written statement within three (3) weeks from today and deposit a sum of Rs.5,000/- (Rupees five thousand only), to the credit of the suit, within four (4) weeks from today. The trial Court shall take up the hearing of the suit, with relatively shorter intervals, and dispose it of within four (4) months from today. There shall be no order as to costs.