THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITIONNO.6111 OF 2012 DATED 14TH NOVEMBER, 2014 Between:
Municipal Corporation, Warangal, Rep. by its Commissioner … Petitioner and M/s. Navodaya Medical and General Stores and others … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.6111 OF 2012 O R D E R The Municipal Corporation, Warangal, is the petitioner. It suffered an ex parte decree dated 02.02.2011 in O.S. No.525 of 2010 on the file of the learned II Additional Junior Civil Judge, Warangal. The said suit was filed by the respondents herein assailing the eviction notices issued by the Corporation and to grant a permanent injunction against the Corporation from interfering with their possession over the suit property.
The petitioner Corporation thereupon filed I.A. N1215 of 2011 in the suit seeking condonation of the delay of 157 days in filing an application under Order 9 Rule 13 CPC to set aside the ex parte decree dated 02.02.2011. By order dated 09.04.2012, the trial Court dismissed the said IA. Aggrieved thereby, the petitioner Corporation is before this Court under Article 227 of the Constitution.
Perusal of the order under revision reflects that the trial Court was prejudiced by the fact that the petitioner Corporation has not filed its written statement though ample time was granted. Further, para 6 of the order under revision reflects that the trial Court proceeded on the assumption that the petitioner Corporation had sufficient knowledge about the ex parte decree. However, the affidavit filed by the petitioner Corporation in support of I.A. No.1215 of 2011 filed in the suit demonstrates that it was never the case of the petitioner Corporation that it is ignorant of the ex parte decree. The delay in the filing of the application to set aside the said decree was sought to be explained by making out a case that the relevant records and material papers were not available for taking steps expeditiously in that regard. The admitted fact of the matter is that the relevant record and material papers were in the custody of learned standing counsel of the petitioner Corporation at Hyderabad owing to the pendency of a matter before this Court. This aspect of the matter was completely lost sight of by the trial Court. As wholly extraneous considerations weighed with the trial Court in dealing with the application which only required it to examine whether the delay in the filing of the application under Order 9 Rule 13 CPC deserved to be condoned, this Court is constrained to set aside the order under revision and remit the matter for consideration afresh.
The CRP is accordingly allowed setting aside the order dated 09.04.2012 passed by the learned II Additional Junior Civil Judge, Warangal, in I.A. No.1215 of 2011 in O.S. No.525 of 2010. The matter is remitted to the file of the said Court for consideration afresh in accordance with law upon giving due opportunity of hearing to both sides. In the circumstances, there shall be no order as to costs.
SANJAY KUMAR, J 14TH NOVEMBER, 2014
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