IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD SATURDAY, THE TWENTY SEVENTH DAY OF AUGUST, TWO THOUSAND AND ELEVEN PRESENT HON’BLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION No.4483 of 2009 Between:
N.Subba Rao … Petitioner And P.Balamani … Respondent This Court made the following:
HON’BLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION No.4483 of 2009 ORDER: -
Petitioner/defendant filed this revision to revise the order of the III Additional Junior Civil Judge at Vijayawada in dismissing I.A.No.168 of 2009 in O.S.No.2393 of 2007, dated 23.07.2009, filed for condoning the delay of 12 days in filing the petition to set aside the ex parte decree passed in the suit, dated 17.04.2008.
Heard the learned counsel for the petitioner and none appears for the respondent.
The Court below mainly relied upon the inconsistent pleas taken in the affidavit filed by the petitioner, which was sworned on 18.02.2009, to set aside the ex parte decree passed on 17.04.2008. Since the Advocate, who drafted the affidavit, has stated that the petitioner came to know the facts recently on 16.01.2007, when he received the notice in the E.P.No.222 of 2008 directing him to appear on 23.01.2009, which clearly shows that it is on 16.01.2009 but not on 16.01.2007. When the suit itself is decreed ex parte on 17.04.2008, petitioner coming to know of the ex parte decree one year earlier to the same, does not arise. Obviously, the Advocate has not shown sufficient care in drafting the affidavit.
Another ground on which the court below has not accepted the plea is that the summons sent to the petitioner in the suit through registered post was returned with an endorsement ‘refused’. It is a sufficient service and accordingly he was set
ex parte on 22.01.2008, which resulted in decreeing the suit
ex parte on 17.04.2008. The correctness or otherwise of the endorsement of the postal department cannot be gone into in the petition. Therefore, the petitioner should have calculated the delay from the date of decree but not from the alleged date of receiving of the notice in the execution proceedings. Even if it is assumed for a moment that he has knowledge of the decree only when he received the notice in the E.P., he should have filed the petition to set aside the decree within 30 days. But he did not choose to do so and filed the application with delay of 12 days without properly explaining the reasons for the said delay.
Since the suit is filed for declaration and for consequential injunction in the plaint schedule property and the petitioner was set ex parte on the first date of hearing in view of the postal endorsement, he should be given an opportunity to contest the suit. Since the petitioner was not diligent in filing the petition to set aside the ex parte decree within 30 days from the date of knowledge, the I.A. can be allowed on payment of costs of Rs.5,000/- to the District Legal Services Authority within four weeks from today. On payment of the same, the delay of 12 days in filing the petition to set aside the ex parte decree passed in the suit, dated 17.04.2008, is condoned.
Subject to the above direction, the Civil Revision Petition is allowed. There shall be no order as to costs.
27-08-2011 Note:-
Issue C.C. by two days {B/o} lmv A. GOPAL REDDY, J HON’BLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION No.4483 of 2009
Dt: 27-08-2011
lmv