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2024 DIGILAW 130 (TS)

Thokala Ramulu v. Govinda Laxmi

2024-03-01

J.SREENIVAS RAO

body2024
ORDER : (J. Sreenivas Rao, J.) 1. Aggrieved by the orders passed by the Senior Civil Judge, Mahabubabad in I.A. No.453 of 2022 in O.S. No.79 of 2018, dated 16.11.2023, petitioner/defendant No. 2 filed this Civil Revision Petition, invoking the provisions of Section 115 of C.P.C. 2. Heard Sri B.Balaji, learned counsel for the petitioner and Sri M.Mallikarjun Reddy, learned counsel appearing for respondents. 3. Revision petitioner herein is defendant No. 2 and respondents are plaintiffs in O.S. No.79 of 2018. For sake of convenience, the parties herein are referred to as they are arrayed in the suit before the Court below. 4. Learned counsel for the petitioner submits that plaintiffs filed suit vide O.S. No.79 of 2018 on the file of the Senior Civil Judge, Mahabubabad, seeking partition and separate possession of the suit schedule properties into equal shares and allot each 1/6th share, with all metes and bounds and other reliefs. In the said suit, defendant No. 2 was set ex-parte on 26.09.2019 for non filing of the written statement. Thereafter, the Court below passed ex-parte preliminary decree on 05.11.2020 in respect of item 3 of the schedule property i.e., Ac.3.24 gts and in respect of item Nos. 1 and 2, dismissed the suit by its judgment and decree dated 05.11.2020. Pursuant to the same, plaintiffs filed application vide I.A. Nos.548 and 549 of 2021 for passing final decree and also for appointment of Advocate Commissioner for ascertaining the main profits regarding partition of item No. 3 of schedule property into 6 equal shares. After receiving the notices in the said application defendant No. 2 came to know about passing of ex-parte preliminary decree. Immediately he filed application seeking set aside the ex-parte preliminary decree dated 05.11.2020, invoking the provisions of Order IX Rule 13 of C.P.C. Along with the said application, defendant No. 2 filed I.A. No.453 of 2022 under Section 5 of Limitation Act seeking condonation of delay of 722 days. 5. Learned counsel further submits that defendant No. 2 could not file the written statement within the stipulated time, due to his ill health, and the Court below passed ex-parte preliminary decree during Covid-19 pandemic. Defendant No. 2 explained the reasons in support of the application. 5. Learned counsel further submits that defendant No. 2 could not file the written statement within the stipulated time, due to his ill health, and the Court below passed ex-parte preliminary decree during Covid-19 pandemic. Defendant No. 2 explained the reasons in support of the application. The Court below without properly considering the same erroneously dismissed the application by its order dated 16.11.2023, by virtue of the same, defendant No. 2 is foregoing his legitimate rights to contest the suit proceedings and also to safeguard his property, on the ground that item 3 of scheduled property is absolute property and the plaintiffs are not entitled any share. He further submits that along with the set aside application, defendant No. 2 filed written statement. 6. Per contra, learned counsel appearing for respondents contended that defendant No. 2 after receiving summons he engaged the counsel and he has not filed written statement inspite of giving reasonable opportunity and he was set ex-parte on 26.09.2019. Defendant No. 2 has not chosen to file application within the stipulated time and he filed present application i.e., I.A. No.453 of 2022 with a delay of more than 722 days seeking to set aside the preliminary decree dated 05.11.2020, without giving valid reasons and also he has not filed any evidence in support of the application. 7. He further contended that after passing preliminary decree, plaintiffs filed applications vide I.A. Nos.548 and 549 of 2021 for passing final decree. In the said proceedings also defendant No. 2 after receiving notices he had not chosen to contest the said proceedings and he was set ex-parte and the Court below appointed Advocate Commissioner for partition of item No. 3 of schedule property and the Court below rightly dismissed the application. 8. Having considered the rival submissions made by the respective parties and after perusal of the material available on record, it clearly reveals that the plaintiffs and defendant No. 2 are none other than brother and sisters and defendant No. 1 is their mother. The plaintiffs filed suit for seeking partition of item Nos. 1 to 3 of suit schedule property and also for allotment of 1/6th share each. In the said suit the summons were served to the defendants. The plaintiffs filed suit for seeking partition of item Nos. 1 to 3 of suit schedule property and also for allotment of 1/6th share each. In the said suit the summons were served to the defendants. Defendant No. 2 has engaged counsel, but he has not filed written statement within the time stipulated and he was made set ex-parte on 26.09.2019 and thereafter Court below decreed the suit in part and passed ex-parte preliminary decree on 05.11.2020 in respect of item No. 3 of schedule property. 9. Pursuant to the same, plaintiffs filed application I.A. Nos.548 and 549 of 2021 before Court below for passing final decree and for appointment of Advocate Commissioner for allotment of 1/6th share to each and in the said applications the Court below ordered notice to defendant No. 2 and after receiving notice, defendant No. 2 has not chosen to file counter and he was made set ex-parte and the Advocate Commissioner submitted report. At that stage, defendant No. 2 filed application seeking set aside ex-parte decree dated 05.11.2020 along with condonation of delay of 722 days in filing set aside petition. The Court below while dismissing the application held that defendant No. 2 has not filed any documents in support of the application explaining reasons. 10. Defendant No. 2 filed documents i.e., medical reports which are pertaining to the year 2021 along with revision petition and he has not filed any documents for the period from 26.09.2019 to 05.11.2020 and he has not prosecuted the proceedings diligently. 11. It is also relevant to place on record that the Court below passed the ex-parte preliminary decree dated 05.11.2020 after commencement of Covid-19 pandemic. The Hon'ble Apex Court in Suo Moto Writ Petition (C) No. 3 of 2020, dated 10.01.2022, held that if the limitation expires during the period between 15.03.2020 to 28.02.2022, the same can be excluded in computing the periods prescribed under Section 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the Court or tribunal can condone delay) and termination of proceedings. 12. 12. In the case on hand, defendant No. 2 filed application vide I.A. No.453 of 2022 seeking condonation of delay of 722 days in filing the set aside ex parte preliminary decree dated 05.11.2020 and permit him to file written statement. It is already observed supra that defendant No. 2 has not prosecuted the matter in diligent manner from 2019 to till date. However, the parties in the suit are none other than brother and sisters and they are seeking partition of suit scheduled property and allotment of respective shares. Whereas defendant No. 2 is claiming absolute rights in item 3 of suit schedule property and he has filed written statement along with set aside petition. 13. In those circumstances, while exercising the powers conferred under Article 227 of the Constitution of India one opportunity was given to defendant No. 2 to contest the suit proceedings. However, by virtue of conduct of defendant No. 2, plaintiffs should not be suffered. Hence, the impugned order dated 16.11.2023, as well as ex-parte preliminary decree dated 05.11.2020 passed by the Court below is set aside, subject to payment of costs of Rs. 25,000/- (Rupees twenty five thousand only) to plaintiffs within a period of six (6) weeks from today. On such payment, Court below is directed to dispose of the suit i.e., O.S. No.79 of 2018 in accordance with law as early as possible preferably within a period of six (6) months from thereafter. Both the parties are directed to cooperate for disposal of the said suit without taking undue adjournments. If defendant No. 2 fails to comply with the order of this Court, the Court below is directed to proceed with the final decree proceedings. 14. With the above direction, the Civil Revision Petition is disposed of accordingly. No costs. Pending miscellaneous petition ns, if any, shall stand closed.