THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY Civil Revision Petition No.422 of 2012 Between:
Golakoti Srinivas Rao And Dated 26th June, 2014 …Petitioner Namuduri Venkata Sarva Lakshmi and others …Respondents Counsel for the petitioner: Sri G.Sampurna Anand for Sri Y.Ashok Raj Counsel for respondent Nos.1 & 2: Ms.Goda Ramalakshmi Counsel for respondent No.3: Sri C.V.R.Rudra Prasad The Court made the following:
ORDER:
All the learned counsel agreed for disposal of the civil revision petition on merits. Hence, I have heard the learned counsel for the parties and perused the record.
This civil revision petition is filed against the order, dated 17.10.2011, in I.A.No.63 of 2011, in O.S.No.63 of 2005, on the file of the learned Senior Civil Judge, Kothapeta, East Godavari District.
The petitioner is defendant No.4 in the above-mentioned suit filed by respondent Nos.1 and 2 for partition of the suit schedule property. A n ex parte preliminary decree was passed in the suit on 13.07.2009. The petitioner filed I.A.No.64 of 2011 under Order IX Rule 13 CPC for setting aside the ex parte decree. He has also filed I.A.No.63 of 2011 for condonation of delay of 500 days in filing the said application. Both these applications were dismissed by the lower Court by a common order. To the extent of the order passed in I.A.No.63 of 2011, the petitioner questioned the same in this civil revision petition.
In support of his application, the petitioner filed an affidavit, wherein he has stated that he has purchased Ac.1.69 cents in R.S.No.321 (Item No.2) of the suit schedule property from respondent No.3 for valuable consideration of Rs.3,38,000/- under registered sale deed, dated 16.12.2004, besides other properties and that he has been in possession and enjoyment of the same. That he came to know about filing of O.S.No.63 of 2005 and his having been set ex parte on 07.03.2007 based on publication made in ‘Gopi Krishna’, newspaper, and passing of judgment and decree, dated 13.07.2009. He has further stated that the purported substituted service by way of publication is not proper and valid one and that he had no knowledge of passing of the ex parte decree till he has received summons in final decree proceedings on 18.11.2010.
It is significant to note that respondent Nos.1 and 2 have not opposed the said application by filing a counter affidavit. A perusal of the order of the lower Court shows that there is not even any representation for any of the respondents, including respondent Nos.1 and 2. However, the lower Court by the order under revision dismissed the application filed by the petitioner and thereby refused to condone the delay. From order under revision, I find that the reasons given by the lower Court are wholly irrelevant and not germane for adjudicating the application for condoning the delay. The lower Court has not adverted to the only issue that arose before it viz., whether the petitioner, who is defendant No.4 in the suit, offered satisfactory explanation for condonation of delay. Instead, the lower Court has embarked upon the locus of the petitioner to contest the suit and also on the consequences of setting aside the decree. Such an approach in my opinion is wholly perverse.
Ms.Goda Ramalakshmi, learned counsel for respondent Nos.1 and 2, vehemently submitted that the order of the lower Court is not liable for interference.
As noted above, respondent Nos.1 and 2 neither contested the application by filing counter affidavit nor there was any representation on their part at the time of hearing. If respondent Nos.1 and 2 were serious in contesting the application of the petitioner, they are expected to appear and oppose the application.
Be that as it may, the learned counsel for the petitioner stated that while there is no dispute about the fact that the summons were not served on his client, the publication through substituted service is a mockery inasmuch as the purported newspaper, namely, ‘Gopi Krishna’, is not known to anyone in the area as it hardly has any circulation. This fact is not disputed by the learned counsel for respondent Nos.1 and 2. She has however sought to justify the said publication on the ground that the lower Court itself has directed causing of publication in the said newspaper.
This Court is unable to comprehend the procedure adopted by the lower Court in directing causing of publication in a little known or unknown newspaper rendering publication of service through substituted service a mockery. In the absence of any dispute that the purported newspaper, ‘Gopi Krishna’, does not have reasonable circulation, knowledge of notice through such publication cannot be imputed to the petitioner. Therefore, the delay should be reckoned only from 18.11.2010 on which date the petitioner has received summons in the final decree proceedings. If the said date is taken into consideration, there will be a meagre delay of 10 days in filing the application for setting aside the ex parte decree.
For the above-mentioned reasons, the order under revision is set aside, I.A.No.63 of 2011 is allowed by condoning the delay and the civil revision petition is accordingly allowed.
As a sequel to disposal of the civil revision petition, C.R.P.M.P.No.591 of 2012 and C.R.P.M.P.No.4269 of 2013 shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY, J 26th June, 2014
VGB