Papupuleti Narayana Swamy Vs Yekasi Rama Swamy

Petition under Article 227 of the Constitution of India,praying that in the circumstances stated in the grounds filed herein,the High Court may be pleased toto ALLOW the CRP by setting aside the Order dated 24.03.2022 passed in I.A. No. 162 of 2022 in O.S. No. 94 of 2016, on the file of Principal District Judge's Court, Kadapa

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IA NO: 1 OF 2022

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to STAY all further proceedings in O.S. No. 94 of 2016, on the file of Principal District Judge's Court, Kadapa and pass

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Counsel for the Petitioner:

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1.G RAMESH BABU

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Counsel for the Respondent(S):

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1.SHAIK MOHAMMED ISMAIL

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The Court made the following:

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ORDER:-

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Both Civil Revision Petitions arouse out of, common order dated 24.03.2022 in I.A.No.162 of 2022 and I.A.No.163 of 2022 in O.S.No.94 of 2016 passed by the Principal District Judge, Kadapa, whereby the petitions filed for permitting the petitioner/the Defendant No.15 to file written statement and for setting aside the ex-parte order dated 30.09.2016 passed against him were allowed.

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The revision petitioner herein is the plaintiff, 1^st respondent herein is the Defendant No.15 and the other respondents are defendant Nos.1 to 14 and 16 to 30 in O.S.No.94 of 2016.

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For the sake of convenience, the parties will be referred herein as they are arrayed before the court below.

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The plaintiff filed the suit for declaration and recovery of possession of the plaint schedule property and for other consequential reliefs of mandatory and permanent injunction. Pursuant to the Court summons, the defendant Nos. 9, 11, 12, 17, 18 , 19, 20, 22, 27 and 28 contested the said suit and other defendants were remained exparte. The plaintiff got examined PW-1 and PW2 on his behalf. Defendants Nos.28, 12, 19 are examined as DW-1, DW-2, DW-3 respectively. After closure of

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evidence and after hearing the arguments of the contesting parties, the suit was reserved for judgment. At that stage, the defendant No.15, filed I.A.No.162 of 2022 and I.A.No.163 of 2022 seeking to re-open the suit and to set aside the ex-parte order dated 30.09.2019 passed against him. The Court below allowed both applications ordering reopening of the suit and permitting the defendant No.15 for filing a written statement. Challenging the said common order, the present C.R.P.s came to be filed.

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Heard the learned counsel for the petitioner and the learned counsel for the respondents.

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Learned counsel for the petitioner submits that the Court below erred in ordering reopening of the suit and also for setting aside the ex - parte order passed earlier as it is contrary to the settled law and guiding principles in respect of reopening of the suits. Further, the Court below committed an error in passing the impugned order on the ground that no summons were served on the 1^st respondent without considering Order V Rule 5 of C.P.C r/w Section 27 of General Clauses Act.

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On the other hand, learned counsel for the 1^st respondent submits that the trial Court is justified in ordering the applications as the suit itself is filed with misconception of material facts.

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There is no error apparent on the face of the record and hence

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the C.R.Ps are devoid of merits and are liable to be dismissed.

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The only point that arises for consideration in these C.R.Ps

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is as to whether the trial Court is justified in allowing the applications filed under Order IX Rule 7 CPC, which reads as under:

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7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance .—Where the Court has adjourned the hearing of the suit, ex parte, and the defendant, at or before such hearing appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

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As seen from the material on record, it appears that the 1^st respondent herein who is defendant No.15 was set ex-parte vide order dated 30.09.2016. It is not in dispute, except the 1^st respondent herein, the other defendants have contested the suit. On completion of evidence and after hearing both sides, the suit was posted for judgment and before pronouncing the judgment, the 1^st respondent herein filed the present applications under Order IX Rule 7 of C.P.C and Section 151 of C.P.C seeking to set-aside the ex-parte order and also to re-open the suit.

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It is the case of the 1^st respondent/ the defendant No.15 against whom the ex-parte order is passed, that he is disputing the service of summons on the ground that the issue of summons by RPAD and the summons by Court did not bear his signatures, more so, the plaintiff has not taken stand that service of summons is proper.

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The fact remains that the present suit is for declaration of right, title and interest over the plaint schedule property, where the rights of the parties on the suit property are involved, which shall be adjudicated exhaustively on merits. Even if the petitions filed by the defendant No.15 are allowed no prejudice would be caused to the plaintiff as the plaintiff would get an opportunity to file rejoinder and cross examine the respondent No.1/defendant No. during the course of trial, if he is examined. The conclusions arrived at by the court below in allowing the petitions are just, reasonable and well-founded and they did not suffer from any serious infirmity warranting interference of this Court in exercise of revisional jurisdiction under Article 227 of the Constitution of India. Hence, the C.R.Ps are totally devoid of merit and are liable to be dismissed.

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