HON’BLE SRI JUSTICE SANJAY KUMAR Civil Revision Petition No.1279 of 2013 Date: 1.9.2014 Between:
Royyala @ Sangineni Chandramouli, Warangal District.
And Royyala @ Sangineni @ Polu Sadandam, Mulug Road, Warangal District and others.
…Petitioner ... Respondents HON’BLE SRI JUSTICE SANJAY KUMAR Civil Revision Petition No. 1279 of 2013 O R D E R:
The first defendant in O.S. No. 396 of 2005 on the file of the I Additional Senior Civil Judge, Warangal is the petitioner.
The said suit was filed by the 1st respondent herein for partition of the suit properties claiming that he was a member of the joint family. The petitioner herein was set ex-parte in the said suit on 26.10.2005 and the suit itself came to be decreed on 4.7.2008. I.A. No. 617 of 2009 was then filed in the said suit by the 1st respondent-plaintiff for passing of a final decree. The petitioner claimed that upon receiving notice in the said I.A., he came to know of the suit proceedings. He further claimed that he was not served the suit summons and remained unaware of the suit proceedings. He therefore filed I.A. No. 157 of 2010 in O.S. No. 396 of 2005 under Section 5 of the Limitation Act, 1963, to condone the delay of 167 days in filing a petition to set aside the ex-parte decree passed in the suit. By order dated 25.1.2013, the learned I Additional Senior Civil Judge, Warangal dismissed the I.A. Aggrieved thereof, the petitioner is before this Court.
On 18.6.2013, this Court granted stay of all further proceedings for a period of ten days, which was thereafter extended upto 5.7.2013. No extension was granted after the said date.
Perusal of the order under revision reflects that the stand adopted by the petitioner for seeking condonation of the delay was that he was not served any summons in the suit and that he was not aware of the suit proceedings. The Court below however perused the record and found that the suit summons had been personally served upon the petitioner. The claim of the petitioner that he was unaware of the suit proceedings was therefore found to be incorrect. As the petitioner had deliberately chosen to suppress this fact and had, on the other hand, based his petition on the claim that he was not served any suit summons, the Court below held that he had not approached the Court with clean hands and accordingly dismissed the I.A.
Sri T.S. Anand, learned counsel for the petitioner, would however contend that though his client was served with the summons, the merits of the matter warrant that he be given an opportunity to put forth his case.
This Court is not persuaded to agree. As the petitioner failed at the very threshold to have the ex-parte decree set aside, it is not open to him to now turn back the clock and start proceedings afresh in the suit. As rightly pointed out by the Court below, the petitioner chose to file the I.A. on a deliberate mis-statement of fact that he was not served with the suit summons, which was found to be untrue as per the record. This Court therefore finds no reason to interfere with the order under revision.
The Civil Revision Petition is devoid of merit and is accordingly dismissed. Pending miscellaneous applications, if any, shall stand dismissed in the light of this order. No order as to costs.
SANJAY KUMAR,J Date: 1st September, 2014 pnb