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2023 DIGILAW 654 (TS)

Goli Venakatanarsimha Reddy v. Meka Aruna

2023-09-20

K.SARATH

body2023
JUDGMENT 1. This Civil Revision Petition is filed under Article 227 of the Constitution of India, aggrieved by the order dtd. 22/12/2021 passed in I.A.No.20 of 2021 in O.S.No.4 of 2018 on the file of Senior Civil Judge at Jangaon, whereunder the petition filed by the revision petitioners to condone the delay of 854 days in filing the application to set aside the ex parte decree passed in O.S.No. 4 of 2018 was dismissed. 2. Heard Sri A.Venkatesh, the learned Senior Counsel for the petitioners and Sri D.V.Chalapathi Rao, the learned Counsel for the respondent. 3. The learned Senior Counsel for the revision petitioners submits that the respondent herein filed a suit in O.S.No.4 of 2018 on the file of Senior Civil Judge, Jangaon for partition and separate possession against the petitioners herein/defendants 1 to 6 on the premise that the plaintiff and defendant Nos.2 to 6 are the children of defendant No.1 and Goli Soma Reddy and the said Goli Soma Reddy during his life acquired suit schedule property and upon his death on 4/12/2012 the suit schedule properties were devolved upon the plaintiff and the defendants 1 to 6 and therefore the respondent filed the suit for partition and separate possession of the same contending that each of them are entitled for 1/7th share. 4. The learned Senior Counsel for the revision petitioners submits that subsequent to filing of the suit, though the respondent is not entitled to any share, efforts were made to resolve the issue to maintain good relationship and therefore the petitioners did not appear before the Court below and not filed written statement hoping that the issue would be resolved and meanwhile Court below decreed the suit ex parte on 29/9/2018. 5. The learned Senior Counsel for the petitioners further submits that even after passing the preliminary decree the petitioners made efforts to resolve the issue. Meanwhile the respondent/plaintiff filed applications in I.A.Nos.130 and 131 of 2019 for passing final decree and for appointment of Advocate Commissioner respectively. As the respondent/plaintiff did not choose to come forward to settle the issue amicably, the petitioners filed in I.A.No.20 of 2021 in O.S.No.4 of 2018 under Sec. 5 of Limitation Act to condone the delay of 854 days in filing the petition to set aside the ex parte decree and the same was dismissed through the impugned order. 6. As the respondent/plaintiff did not choose to come forward to settle the issue amicably, the petitioners filed in I.A.No.20 of 2021 in O.S.No.4 of 2018 under Sec. 5 of Limitation Act to condone the delay of 854 days in filing the petition to set aside the ex parte decree and the same was dismissed through the impugned order. 6. The learned Senior Counsel for the petitioners further submits that though the delay was sufficiently explained in the affidavit the Court below erroneously dismissed the condone delay petition filed by the petitioners. The partition suit is stands on a different pedestal as the parties are closely related and any stand/sub stand being taken by other parties would definitely precipitate the issue and cause damage to the family and the cordial relationship among the family members. Further when the mother of the parties is still alive, every effort is being made by the parties to resolve the issue amicably and therefore the Court below ought to have accepted the explanation of the petitioners about the efforts for compromise. Even after receipt of summons in the suit, the petitioners made efforts to resolve the issue as per the advice of the common relatives as well as well-wishers and it would definitely take more time and the relationship between the parties is not only close but also delicate apart from there being some raised tempers among the parties. Once the written statement is filed by the parties by denying the stand of the plaintiff and sort any other stand the very efforts being put up by the petitioners and the common relatives would become futile and there could not be any possibility amicable settlement. The written statement was not filed taking a stand only with a good intention to avoid any kind of strained relationship between the parties and the Court below without appreciating the same erroneously dismissed the interlocutory application and requested to allow the Civil Revision Petition by setting aside the impugned order. 7. The learned Senior Counsel appearing for the revision petitioners in support of his contentions placed reliance on the following Judgment: 1. Dr. Sukdev Singh Gambhir Vs. Amrit Pal Singh and others, 2003 AIR (DELHI) 280. 8. 7. The learned Senior Counsel appearing for the revision petitioners in support of his contentions placed reliance on the following Judgment: 1. Dr. Sukdev Singh Gambhir Vs. Amrit Pal Singh and others, 2003 AIR (DELHI) 280. 8. On the other hand the learned Counsel for the respondent/plaintiff submits that the Revision Petitioners have not come to the court with clean hands in filing the petitions to condone the delay and to set aside the ex parte decree and the averments of the petitions are deliberate and vexatious and non-appearance of the parties before the Court below during the pendency of the suit is willful and intentional. Further, on one hand the petitioners denied that the suit schedule property is ancestral property, not amicable for partition and on the other hand the petitioners claims that they have not taken any steps for prosecuting the suit for filing a partition to set aside the ex parte decree within limitation for the reason that talks for settlement and compromise were underway for more than 800 days demonstrates the contradiction of the claim and therefore Court below after having considered all the aspects, rightly dismissed the Interlocutory Application and there are no grounds to set aside the impugned order and requested to dismiss the Civil Revision Petition. 9. The learned Counsel appearing for the respondent in support of his contentions placed reliance on the following Judgment: 1. Asif Ali Ghouse Pasha Vs. Ayatulla Quadri, [Judgment in IA No.1 of 2021 in AS No.284 of 2021 dtd. 15/2/2023 of Telangana High Court] 2. Vatchala Vs. T.Pari, [ Judgment in CRP No.2864 of 2022 dtd. 5/1/2023 Of Madras High Court] 3. Puli Appa Rao Vs., Thammina Rama Rao, [CRP No.1496 of 2002 dtd. 25/11/2022 Of High Court of Andhra Pradesh at Amaravathi] 10. After hearing both sides, this Court is of the considered view that the suit was filed by the respondent against the petitioners for partition of properties. The respondent and the petitioners herein are family members and the suit was decreed ex parte on 29/8/2018 granting preliminary decree in favour of the respondent. The petitioners herein filed petition for setting aside the ex parte decree along with the petition to condone the delay of 854 days i.e. from 29/8/2018 to 29/1/2021 and the same was dismissed by the Court below through the impugned Order. The petitioners herein filed petition for setting aside the ex parte decree along with the petition to condone the delay of 854 days i.e. from 29/8/2018 to 29/1/2021 and the same was dismissed by the Court below through the impugned Order. In their petition, the petitioners contended that due to advise of the common relatives of the petitioners and the respondent to resolve the dispute in terms of compromise and to maintain cordial relations between the petitioners and the respondent, the petitioners did not attend the Court below in the suit and therefore the suit was decreed ex parte on 29/8/2018 for non-appearance of the petitioners. 11. The petitioners filed I.A.No.20 of 2021 in O.S.No. 4 of 2018 to condone the delay of 854 days in filing the petition under Order-IX, Rule-13 for setting aside the ex parte decree. Along with the said petition the petitioners also filed detailed written statement and the Court below dismissed the said petition on the ground that the said petition was filed with exorbitant delay of 854 days and no sufficient reason had been explained for the said enormous delay and that one cannot be expected to wait for 854 days to get the matter compromised after receipt of summons in the suit that too when it is the case of the petitioners that part of the suit schedule properties are their self-acquired properties and if such is the case, the petitioners ought to have requested the Court to refer the matter to Lok Adalath or any mode of settlement, but no steps were taken by the petitioners for a period of 854 days which is exorbitant delay and that it is settled law that law is in favour of those who are vigilant but no who are dormant. 12. Admittedly, the suit was filed for partition of the properties among the family members. It is settled law that once the suit for partition was dismissed for default, the plaintiff can file fresh suit for same cause of action, because the cause of action survives and the jointness continues. In the instant case the petitioners/defendants were set ex parte, who are family members of the respondent/plaintiff and moreover no final decree was passed in the instant suit and therefore cause in the suit still in subsistence. 13. In Dr. Sukdev Singh Gbambir Vs. In the instant case the petitioners/defendants were set ex parte, who are family members of the respondent/plaintiff and moreover no final decree was passed in the instant suit and therefore cause in the suit still in subsistence. 13. In Dr. Sukdev Singh Gbambir Vs. Amrit Pal Singh (supra), relied on by the learned Counsel for the petitioners, the Delhi High Court at para No.5 held that: "......Firstly in a suit for partition concerning a family member where every endeavour should be made for an amicable settlement. Even otherwise the mandate under Sec. 89 effort ought to be made to settle the matter". 14. The Judgments relied on by the learned Counsel for the respondent viz., 1) Asif Ali Ghouse Pasha Vs. Ayatulla Quadri 2) Vatchala Vs. T.Pari and (3) Puli Appa Rao Vs., Thammina Rama Rao (supra 2 to 4) not apply to the instant case as they are not pertaining to suit for partition. 15. The Hon'ble Supreme Court in Esha Bhattarjee Vs. Managing Committee of Raghunathpur Nafar Academy, 2013 (12) SCC 649 . framed certain guidelines for condoning the delay, at para No.21, as follows- " i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation. iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. xxxx (Emphasis added) 16. In view of the guideline Nos. i to iii of the guidelines framed by the Hon'ble Apex Court in the above judgment, petition filed by the petitioners to condone the delay in filing the petition to set aside the ex parte decree passed against the petitioners deserves to be allowed as the suit is filed for partition and the jointness of the parties continues and no final decree passed in the suit. 17. In view the same, finding the delay of 854 days in filing the petition for setting aside the ex parte decree has to be condoned. 17. In view the same, finding the delay of 854 days in filing the petition for setting aside the ex parte decree has to be condoned. Further the petitioners also filed detailed written statement along with the petition for setting ex parte decree to prove their readiness. 18. In view of the above findings, the Civil Revision Petition is allowed and the impugned order dtd. 22/12/2021 passed in I.A.No.20 of 2021 in O.S.No.4 of 2018 by the file of Senior Civil Judge at Jangaon is hereby set aside and consequently the I.A is allowed by condoning the delay. 19. Miscellaneous applications pending, if any, in the this Civil Revision Petition shall stand closed.