Between
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No. 1251 OF 2014 Dated:24-10-2014
Sahebzadi Amina Marzia AND Smt.
Smt. Shaheen Aga and nine others ... PETITIONER .. RESPONDENTS THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
CIVIL REVISION PETITION No. 1251 OF 2014
ORDER:
The petitioner filed O.S No. 173 of 2002 in the Court of Chief Judge, City Civil Court, Hyderabad for the relief of cancellation of compromise decree in O.S No. 1706 of 1994 dated 06-03-1995 passed by the Court of V Senior Civil Judge, City Civil Court, Hyderabad; for declaration that the irrevocable General Power of Attorney and the deed of assignment dated 27-12-1991 are not binding upon her and for other consequential reliefs including the one of recovery of Rs.1,13,59,931/- from the respondents. An ex parte decree was passed by the trial Court on 29-04-2004.
On coming to know that an ex parte decree was passed against them, defendant Nos.3 and 2 i.e., respondent Nos.1 and 2 herein filed an application under Order IX Rule 13 CPC. Since there was a delay of 824 days in presenting the application, they filed I.A No. 2324 of 2007 under Section 5 of the Limitation Act. It was pleaded that they have not been served with any summons at all and even on verification of the record of the Court, it emerged that they were set ex parte without even ensuring that the summons are served. The I.A was opposed by the petitioner by filing a detailed counter. She stated that the summons were served in accordance with law and the plea of respondent Nos.1 and 2 is not correct. The trial Court allowed the I.A through order dated 26-11-2012. Hence this revision.
Heard Sri P. Venugopal, learned Advocate General for the petitioner and Sri K.K. Waghray, learned counsel for the respondents.
In case, respondent Nos.1 and 2 have received the summons and failed to participate in the proceedings, the application filed for condonation of delay even for a relatively lesser period was liable to be rejected. The specific plea of respondent Nos.1 and 2 was that they did not receive the summons in the suit at all. Because the subject matter of the suit was heavy and the contest was stiff, the trial Court undertook a detailed exercise, even in the application filed under Section 5 of the Limitation Act. The relevant provisions of CPC as well as the precedents relating to service of summons were taken note of. On verification of the record, and after taking note of the docket orders passed from time to time up to the date of the ex parte decree, the trial Court observed as under:
“Thus, there was no report submitted before the Court either by the Office of the Court or the plaintiff as to whether summonses were sent by Courier service or otherwise and, if so, what is the report in regard to service, if any, affected or not on the defendants 2 and 3. The docket proceedings do not show that summonses, if any, sent as per procedure either with the report of the service or otherwise was submitted to Court. However, the Court simply noted on the proceeding sheet to the effect that ‘D2 and D3 called absent. No representation. Hence, D2 and D3 are set ex parte.’ When there is no material to show that the defendants 2 and 3 were served with the summons, how such an order setting the said defendants exparte was made remains unexplained. Therefore, from the recorded proceedings of the Court on the proceeding sheet of the very suit, it is crystal clear that the defendant 2 and 3 (the petitioners herein) were sex exparte on 28.03.2008 without service of summonses upon them much less in accordance with the procedure established by law. This fact is by itself sufficient to hold that the defendants 2 and 3 (petitioners herein) are not aware of the proceedings in O.S No.173 of 2002 and, therefore, as a sequel to this finding, their explanation for condonation of delay can be accepted as sufficient cause going by the facts and circumstances of the case.”
The petitioner is not able to demonstrate that the observations made by the trial Court, after perusal of the court record are not correct. The occasion to set a defendant in a suit, ex parte, would arise only when summons are served and the party did not care to enter appearance. Strictly speaking, there was no necessity for respondent Nos.1 and 2 to file the application for condonation of delay since they did not have the knowledge about the decree till the steps were taken thereon by the petitioner. The trial Court has taken the correct view of the matter. This Court is not inclined to interfere with the order under revision.
The C.R.P is accordingly dismissed. The miscellaneous petitions filed in this revision shall also stand disposed of. There shall be no order as to costs.
L. NARASIMHA REDDY, J 24-10-2014 ks Note:
LR copy to be marked.
B/O ks