HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY C.R.P.No.2050 of 2014 Date : 7-11-2014 Between :
Jakkileti Yadagiri @ Makkapati Yadagiri Rao .. Petitioner And K. Ravinder Reddy and others .. Respondents Counsel for petitioner : Sri Krishna Kishore Kovvuri Counsel for respondents : Sri D. Prakash Reddy, Senior Counsel for Sri Harender Pershad The Court made the following order
ORDER:
This Civil Revision Petition arises out of order dated 22-1-2014 in I.A.No.622 of 2013 in I.A.No.135 of 2013 in O.S.No.38 of 2013 on the file of the learned Additional Junior Civil Judge, Kukatpally at Miyapur. I have heard Sri Krishna Kishore Kovvuri, learned Counsel for the petitioner and Sri D. Prakash Reddy, learned Counsel appearing for Sri Harender Pershad, learned Counsel for the respondents.
The petitioner filed the above mentioned suit for perpetual injunction against the respondents. He has filed I.A.No.135 of 2013 for temporary injunction. On 1-2-2013, the lower Court, while granting status quo issued summons to the respondents. The summons were served on the respondents, but they failed to appear before the lower Court on 11-2-2013. The lower Court appeared to have passed an order taking note of the fact that the respondents remained exparte and observing that the I.A. will be disposed of on merits on the next date of hearing, which happened to be 5-3-2013. On that day, the lower Court has disposed of I.A.No.135 of 2013 granting temporary injunction. The respondents filed I.A.No.622 of 2013 under Section 151 CPC for reopening order dated 5-3-2013 (sic: I.A.No.135 of 2013). This application was resisted by the petitioner on the ground that the lower Court has disposed of I.A.No.135 of 2013 after notice to the respondents and that such an order cannot be recalled in view of the second proviso to Order XXXIX Rule 4 CPC. The lower Court, however, rejected the said objection and allowed I.A.No.622 of 2013. It is not in dispute that notices were received by the respondents in I.A.No.135 of 2013, but they failed to appear on 11-2-2013 and also on 5-3-2013 when the said application was disposed of. Though, no formal order of setting the respondents exparte appears to have been passed, the application was disposed of in their absence. In broader sense, Order IX Rule 13 CPC applies to the present case if the respondents are able to satisfy the Court that they were prevented by sufficient cause from appearing when the case was called for hearing on 11-2-2013 and 5-3-2013. As rightly pointed out by Sri D. Prakash Reddy, the learned Senior Counsel, though Order IX Rule 13 CPC applies to decrees, the definition of which excludes any order against which an appeal against order will lie, in view of Explanation to Section 141 CPC, an order passed under Order XXXIX CPC also falls within the scope of Order IX Rule 13 CPC.
The Judgment in Metta Chandra Sekhara Rao Vs. Ganga Ram and another wherein it was held that an application under Order IX Rule 13 CPC is not maintainable for setting aside an exparte order of injunction as it is not a decree, has not noticed the Explanation to Section 141 CPC.
Be that as it may, though notices were served on the respondents, they could not be present in view of the reasons mentioned in the affidavit filed in support of I.A.No.622 of 2013. Under the second proviso to Rule 4 of Order XXXIX CPC, an order of injunction passed after giving a party an opportunity of being heard, shall not be discharged, varied or set-aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party. The respondents have pleaded that as respondent No.3 was away in Delhi after receipt of notice, none of the respondents could be present before the Court on 11-2-2013 or on 5-3-2013. Though this explanation does not constitute sufficient reason, as the lower Court has exercised its discretion in favour of the respondents, this Court is not inclined to interfere with such discretion. However, since the respondents were not diligent in pursuing their cause, they are saddled with costs of Rs.10,000/- (Rupees ten thousand only) payable to the petitioner within two weeks. The respondents shall file proof of payment of costs before the lower Court. Only on such proof being filed, the lower Court shall proceed with the further hearing of I.A.No.135 of 2013.
Subject to the above directions, the Civil Revision Petition is disposed of.
As a sequel to the disposal of the Civil Revision Petition, interim order dated 15-7-2014 is vacated and CRPMP No.2876 of 2014 is disposed of as infructuous.
Justice C.V. Nagarjuna Reddy Date : 7-11-2014 L.R. copies AM