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2019 DIGILAW 335 (AP)

Goddati Lakshmi v. Dasari China Apparao

2019-11-22

C.PRAVEEN KUMAR

body2019
ORDER : C. Praveen Kumar, J. 1. Assailing the order dated 27.6.2019, passed in I.A. No. 42 of 2019 in O.S. No. 16 of 2016 on the file of the II Additional Senior Civil Judge, Vijayawada, wherein an application filed by the petitioners/defendants to condone the delay of 552 days in filing the petition to set aside the ex parte decree and judgment dated 27.6.2017 was dismissed, the present Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure. 2. Originally, respondents/plaintiffs filed the suit for possession of 15 square yards of site on the southern side and 20 square yards of site on the western side of the plaint schedule property and for a mandatory injunction directing the defendants to remove the illegal structures namely the steps and a gate raised in the common path way. Ex parte decree came to be passed in the said suit on 27.6.2017. It is said that on 12.12.2018, during the absence of defendants in the house, the plaintiffs, along with some other persons, claiming to be the employees of the Court, came to the premises and proclaimed that the defendants have to vacate the premises by demolishing the impugned structure. On coming to know about the same, the defendants made enquiries before the Court which revealed that on 18.1.2016 the defendants were set ex parte as they failed to attend the court and consequently, an ex parte decree came to be passed in the month of June, 2018. 3. It is pleaded that the petitioners are not aware about initiation of the suit and the order passed, since no notices were served on them. It is said that there is dispute between the brother of the father-in-law and others on one side & the plaintiffs on the other side and taking advantage of the same, the present suit has been initiated. It is further pleaded that on receipt of court notices, the defendants met the 2nd plaintiff and questioned her about filing of the suit, to which she replied that the suit came to be filed because of disputes with Goddati Naga Lakshmana Swami and others and she further represented that she would withdraw the suit against the defendants. She further told them that there is no necessity for the defendants to attend the Court. She further told them that there is no necessity for the defendants to attend the Court. Believing her words, the defendants kept quiet without taking any further action in the suit. But, however, the 2nd plaintiff went against the assurance given and obtained an ex parte decree behind the back, which they came to know on 12.12.2018. Having regard to the above, it is pleaded that there is delay in filing the suit. 4. A counter came to be filed by the respondents/plaintiffs disputing the averments made in the affidavit filed in support of the petition. It is said that though the notices were served on the defendants, there is no representation on their behalf; hence, a decree came to be passed by the Court. Thereafter, E.P. No. 37 of 2015 came to be filed for execution of the same. Pursuant to which, the Field Assistant along with the plaintiffs went to the schedule property for execution, but the defendants obstructed the execution of decree, as such, the plaintiffs and the Field Assistant were forced to return. Thereafter, the defendants filed E.A. No. 18 of 2019 to stay all further proceedings in E.P. No. 37 of 2018 with false and untenable allegations suppressing the real facts. It is further pleaded that in spite of the Court giving ample opportunity, the defendants did not take any steps to contest the suit. Accordingly, the Court rightly passed the decree. Since the action of the defendants is only with a view to drag on the proceedings, it is urged that there are no circumstances to condone the delay of 552 days. Taking into consideration the above submissions made, the trial Court dismissed the E.A. filed to condone the delay of 552 days in filing the petition to set aside the ex parte order. Challenging the same, the present Civil Revision Petition is filed. 5. The learned counsel for the petitioners mainly submits that the version of the defendants that they met the second plaintiff who assured to withdraw the suit and that the defendants need not contest the same was never denied in the counter. In view of the same, it is pleaded that petitioners/defendants did not contest the matter. 5. The learned counsel for the petitioners mainly submits that the version of the defendants that they met the second plaintiff who assured to withdraw the suit and that the defendants need not contest the same was never denied in the counter. In view of the same, it is pleaded that petitioners/defendants did not contest the matter. Since the 2nd plaintiff played fraud by not withdrawing the suit as promised and as an ex parte decree came to be passed behind their back, the petitioners were forced to file I.A. and also E.A. in E.P., since the petitioners would be put to irreparable loss in case decree is executed. 6. As seen from the record, the dispute is with regard to 15 square yards of land situated in southern side and 20 square yards of land situated on the western side of plaint schedule property which the defendants are said to be in occupation and also raised some structures therein. The record also disclose that defendants have received summons from the court, pursuant to which they went to the 2nd plaintiff, who seems to have stated that the suit was filed having regard to the dispute with one, Goddati Naga Lakshmana Swami and others and the same would be withdrawn against the defendants. Believing the representation made by the 2nd plaintiff, who is also related to them, the defendants did not contest the matter and remained ex parte. 7. The contents of the Order impugned show that the ex parte order was passed on 27.06.2017 and thereafter the Respondents filed E.P. No. 37 of 2018. It is said that when the Plaintiffs and the Field Assistant went to the plaint schedule property, they were obstructed by the petitioners. It is said that, in spite of service of summons, the petitioners did not contest the matter and only when E.P. proceedings are initiated, the present application came to be filed. 8. It is to be noted that, the dispute is with regard to the recovery of possession of 15 square yards on the southern side and 20 square yards on the western side of the plaint schedule property by way of ejecting the defendants from that area. It also relates to a relief of mandatory injunction to remove illegal structures of steps and gates raised in the common pathway on the southern west corner of the properties of the defendant. 9. It also relates to a relief of mandatory injunction to remove illegal structures of steps and gates raised in the common pathway on the southern west corner of the properties of the defendant. 9. Having regard to the reliefs claimed and in view of the explanation given, I feel that the delay can be condoned on certain terms and conditions. 10. Taking into consideration the facts in issue and the findings given in the preceding paragraphs as to the reason for the delay and since the dispute involves recovery of possession of property and removal of permanent structures, it would be just and proper to give an opportunity to the defendants to contest the matter on merits. 11. Accordingly, the C.R.P. is allowed condoning the delay of 552 days in filing the application subject to condition of petitioners paying a sum of Rs. 5,000/- to the plaintiffs towards costs. No order as to costs. Consequently, miscellaneous petitioners pending, if any, shall stand closed.