THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY Civil Revision Petition Nos.462 & 803 of 2009 Dated 12th December, 2014 Between:
Mohammed Aslam …Petitioner
(C.R.P.No.462 of 2009)
And Smt. Sharifunnisa and others …Respondents
(C.R.P.No.462 of 2009)
Counsel for the petitioner: Sri Resu Mahender Reddy Counsel for respondent No.13: Sri K.Lakshman The Court made the following:
COMMON ORDER:
These two civil revision petitions arise out of separate orders in common suit. The facts leading to filing of these civil revision petitions are briefly summarised as under:
The petitioner has filed O.S.No.21 of 2004 against 13 defendants for partition. A n ex parte preliminary decree was passed on 14.11.2005 and an ex parte final decree was passed on 17.04.2007. Thereafter, respondent No.13/defendant No.13 (Gopalnagar Cooperative House Building Society Limited) filed I.A.Nos.232 and 233 of 2007 for setting aside the said ex parte decrees.
It is the pleaded case of respondent No.13 that the petitioner has not shown the correct names of the office bearers of the Society and by showing wrong addresses, he has obtained the ex parte decrees. The petitioner has, however, pleaded that the Society has received the notice and that it failed to contest the suit, as a result of which, it has allowed passing of an ex parte preliminary decree as well as final decree.
The petitioner has raised an objection to the maintainability of the IAs on the ground that as they were filed beyond the period of limitation, they are not maintainable unless applications for condoning the delay under Section 5 of the Limitation Act, 1963 are filed.
However, the lower Court has accepted the plea of respondent No.13 that since the petitioner has played fraud, the law of limitation has no application. It has relied upon the judgment of the Supreme Court in S.P.Chengalva Raya Naidu (died as per LRs.) v. Jagannath.
A perusal of the orders of the lower Court would show that detailed reasons have not been assigned by it in support of the plea of respondent No.13 that while rendering a finding that the petitioner has shown wrong person as representing the Society. The nature of the allegations raised by respondent No.13 requires adjudication based on proper evidence which shall include oral evidence as well. The question who between Mr.B.Pentaiah Yadav and Mr.P.Rama Goud was the President of the Society and whether Mr.S.B.S.N.Raju was the Secretary needs to be decided before allowing the application of respondent No.13. If the evidence shows that Mr.B.Pentaiah Yadav was the President of the Society, the plea of respondent No.13 may be liable to be rejected.
The lower Court also failed to consider the fact that since receipt of summons on behalf of the Society is not in dispute, it ought to have enquired into as to who has received the notice on behalf of the Society and whether the person who has received the notice was authorised to receive such notice on behalf of the Society. Without holding detailed enquiry into all these aspects, the lower Court is not justified in readily accepting the plea of respondent No.13 that the petitioner has played fraud in securing the ex parte decrees. Perfunctory approach of the lower Court in passing the impugned orders cannot be appreciated.
For the above-mentioned reasons, both the orders under civil revision petitions are set aside. The cases are remanded to the lower Court for consideration afresh for holding fresh enquiry and passing a well reasoned order after hearing both the parties. The lower Court shall allow both the parties to adduce both oral and documentary evidence during enquiry.
The civil revision petitions are accordingly allowed.
As a sequel to disposal of the civil revision petitions, pending interlocutory applications shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY, J 12th December, 2014
VGB