Koneru Kamala Kumar Vs Potineni Sita Ratna Kumari

KONERU KAMALA KUMAR, S/O LATE SIVARAM PRASAD HINDU,AGED 37 YEARS. PRIVATE EMPLOYMENT, R/O PLOTNO.148, KALYAN NAGAR, BEHIND JJ HOSPITAL, HYDERABAD, CITY CIVIL COURT LIMITS HYDERABAD PRESENT RESIDENCE-D.NO.13942, NE 12 STREET, VE 103 BELLEBUE WA 98005 UNITED STATES OF AMERICA (USA)

¶10

...PETITIONER

¶11

AND

¶12

POTINENI SITA RATNA KUMARI, W/O HARINATHA BABU, AGED 69 YEARS, PROPERTIES, R/O HOUSE NO. 1990, 3RD CROSS 20TH MAIN J.P. NAGAR, 2ND PHASE BANGALORE, BANGALORE CITY CIVIL COURT LIMITS

¶13

KONERU VENKATA KRISHNA MURALI MOHANA RAO D1, S/O LATE KAMALA NADHAM, AGED 64 YEARS, R/OD.NO.42-590, PLOTNO.201 SRI HARI NILAYAM, GREEEN HILLS COLONY, MOULALI, HYDERABAD, CITY CIVIL COURT LIMITS HYDERABAD

¶14

KONERU NALINI D2, W/O LATE SIVA RAMA PRASAD AGED 62 YEARS R/O PLOT NO.158, FLAT NO.101, JYOTHI ARCADE, SECRETARIAT COLONY, PUPPALA GUDA, HYDERABAD

¶15

KONERU SIVA KUMAR D3, S/O. LATE SIVARAMA PRASAD, AGED 38 YEARS. PRIVATE EMPLOYEE, FT/OPLOT NO.158, FLATNO.101, JYOTHI ARCADE, SECRETARIAT COLONY, PUPPALA GUDDA,

¶16

2

¶17

VS, J

¶18

C.R.P.No.2028 of 2024

¶19

HYDERABAD

¶20

SRI GUMMADI BABJI D5, S/O VENKATA SUBBAIAH, HINDU, AGED 72 YEARS, OCC- RETIRED EMPLOYEE, R/O PLOT NO.8, K.C.P.COLONY, TADIGADAPA PENAMALURU MANDAL, VIJAYAWADA J.C.J.C.

¶21

GUMMADI HARISH D6, S/O BABJI, AGED 42 YEARS, OCCPRIVATE EMPLOYMENT, PLOT NO.8. K.C.P. COLONY, TADIGADAPA, PENAMALURU MANDAL VIJAYAWADA J C JC.

¶22

BOBBA SHANTI D7, S/O RAJENDRA KUMAR, AGED 46 YEARS, R/O 104, 3RD FLOOR, 25TH CROSS, 6TH BLOCK, JAI NAGAR BANGALORE, BANGALORE CITY CIVIL COURT LIMITS.

¶23

...RESPONDENT(S):

¶24

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 toAggrieved by the orders dated 02/08/2024, passed by the Court of Honble P rl. Senior Civil Judge, Gudivada, in I.A. No.397 of 2022 in O.S. No.163 of 2010, the Petitioner begs to submit the present Revision Petition

¶25

IA NO: 1 OF 2024

¶26

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 may be pleased to stay all further proceedings in the Suit vide O.S. No. 163 of 2010 on the file of HonblePrI. Senior Civil Judge, Gudivada, and pass

¶27

Counsel for the Petitioner:

¶28

1.P S P SURESH KUMAR

¶29

Counsel for the Respondent(S):

¶30

1.KAVITHA GOTTIPATI

¶31

3

¶32

VS, J

¶33

C.R.P.No.2028 of 2024

¶34

The Court made the following ORDER :

¶35

The Civil Revision Petition is filed challenging the order dated 02.08.2024 in I.A.No.397 of 2022 in O.S.No.163 of 2010 passed by the learned Principal Senior Civil Judge at Gudivada, dismissing the petition filed under Section 5 of the Limitation Act, seeking condonation of delay of 1293 days in filing the petition for setting aside the ex parte preliminary decree passed on 29.09.2016.

¶36

The revision petitioner herein is the 4^th defendant in O.S.No.163 of 2010. The 1^st respondent herein is the plaintiff and respondents 2 to 7 herein are the defendants 1 to 3 and 5 to 7. For the sake of convenience, the parties will be referred to as they are arrayed before the Court below.

¶37

The plaintiff filed the suit O.S.No.163 of 2010 against the defendants for partition of plaint schedule properties into four equal shares as per conveyance and enjoyment and put the plaintiff in separate possession of one such share. As all the defendants remained ex parte, an ex parte preliminary decree was passed on 29.09.2016 allotting the shares between the parties. Thereafter, the plaintiff also filed I.A.No.286 of 2017 for passing of final decree in terms of preliminary decree dated 29.09.2016. In the said petition also, the 4^th defendant was set ex parte on 17.07.2017. Thereafter, the 4^th defendant filed a petition under Order IX Rule 13 CPC seeking to set aside the ex parte decree dated 29.09.2016. Since there was delay in filing such petition, the 4^th

¶38

4

¶39

VS, J

¶40

C.R.P.No.2028 of 2024

¶41

defendant also filed I.A.No.397 of 2022 under Section 5 of the Limitation Act seeking to condone the delay of 1293 days in filing the petition under Order IX Rule 13 CPC to set aside ex parte decree dated 29.09.2016. The 4^th defendant also filed I.A.No.398 of 2022 under Order IX Rule 7 CPC seeking to set aside the ex parte order passed on 17.07.2017 in the final decree petition. But, the Court below, after hearing the parties, dismissed I.A.No.397 of 2022 vide its order dated 02.08.2024. Assailing the said order, the present Civil Revision Petition came to be filed.

¶42

Heard Sri P.S.P. Suresh Kumar, learned counsel appearing for revision petitioner and the learned counsel for respondents.

¶43

Learned counsel for the revision petitioner submits that the Court below failed to appreciate the reasons explained for the delay in filing the petition under Order IX Rule 13 CPC and without looking into the same, the Court below erroneously dismissed the petition. He submits that the Court below grossly erred in dismissing the petition without considering the binding precedents of the Hon’ble Apex Court in W.P.(Civil)No.3 of 2020 dated 23.03.2020, wherein the period of limitation prescribed under the general Law of Limitation or Special Law is extended w.e.f.15.03.2020, on account of Covid-19 virus, which is squarely applicable to the present case. He further submits that even in I.A.No.398 of 2022 filed under Order IX Rule 7 CPC, seeking to set aside the said ex parte order dated 17.07.2017 passed in final decree proceedings i.e. I.A.No.286 of 2017, the Court below allowed the said

¶44

5

¶45

VS, J

¶46

C.R.P.No.2028 of 2024

¶47

petition with nominal costs on 13.08.2024, whereas, in I.A.No.397 of 2022 filed for condonation of delay in filing the petition for set aside the ex parte decree, even though the same reasons are assigned, the Court below without looking into the reasons, erroneously dismissed the application, which is inconsistent and non-application of mind. Therefore, the impugned order is not sustainable and is liable to be dismissed.

¶48

On the other hand, the learned counsel for the respondents submits that the revision petitioner herein was residing along with his mother and elder brother under one roof and summons were sent to the very same address, but the revision petitioner had intentionally avoided service of summons on the ground of abode and as such he was rightly set ex parte . In fact, summons were served both personally and through e-mail and the claim of ignorance about pendency of the suit against him is not tenable. He further submits that since the delay caused is only due to his negligence and malafide intention, and no valid reasons are assigned for setting aside the order under revision, the Civil Revision Petition is liable to be dismissed.

¶49

The point that arises for consideration is whether the Court below is justified in dismissing the petition for condonation of delay in filing the petition for setting aside the ex parte preliminary decree dated 29.09.2016.

¶50

8. POINT:

¶51

It is the case of the revision petitioner, in the affidavit filed in support of

¶52

the application filed for condonation of delay, that the plaintiff falsely and

¶53

6

¶54

VS, J

¶55

C.R.P.No.2028 of 2024

¶56

wilfully mentioned his address so as to avoid service of summons upon him and due to mentioning of false address, notices were not served upon him and even the substitute service by way of publication was also not aware of him, as the newspaper Visalandra, wherein substitute service of notice was published, is having circulation only in Andhra Pradesh, but not at a large scale, due to which he could not see as he was residing at USA at that point of time. Since the revision petitioner failed to appear before the court, he was

¶57

set ex parte on 21.07.2016 and an ex parte decree was passed on 29.09.2016. It is also the specific case of the revision petitioner that when he returned to India on 08.03.2020 for a formal visit and when he visited his lands, he came to know about filing of the suit as well as passing of ex parte preliminary decree. Immediately, he filed the petition for setting aside ex parte decree along with a petition I.A.No.397 of 2022 seeking to condone the delay in filing the petition for setting aside the ex parte decree, as there was delay of nearly 1293 days.

¶58

Further, it appears that in the meantime, the plaintiff also filed I.A.No.286 of 2017 for passing a final decree in terms of the ex parte preliminary decree. However, in the final decree proceedings also, the revision petitioner was set ex parte on 17.07.2017. The revision petitioner also filed I.A.No.398 of 2022 seeking to set ex parte order dated 17.07.2017. The said petition was allowed on imposing nominal costs. But, insofar as the petition filed for condonation of delay, the Court below, reiterating the contents of the

¶59

7

¶60

VS, J

¶61

C.R.P.No.2028 of 2024

¶62

plaintiff, without looking to the reasons explained by the revision petitioner, dismissed the petition vide its orders dated 02.08.2024. Though same reasons were assigned by the trial Court in allowing I.A.No.398 of 2022, the trial Court has erroneously dismissed I.A.No.397 of 2022.

¶63

Before proceeding further, it is relevant to refer Article 123 of the Schedule of the Limitation Act, 1963, thus:

¶64

Description of Application	Period of limitation	Time from which period begins to run
123.To set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parte. Explanation.—For the purpose of this article, substituted service under rule 20 of	Thirty days.	The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree.
Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not be deemed to be due service.

¶65

As per Article 123 of the Limitation Act, 1963, the period of limitation runs to begin either from the date of decree or from the date of knowledge of the decree where summons or notices was not duly served. Apparently, the revision petitioner came to know about filing of the suit and passing of preliminary decree when he returned to India on 08.03.2020 on his formal visit and immediately, he filed the petition for condonation of delay. It is evident from the record that the revision petitioner filed copies of passport showing his visit to India on different dates.

¶66

Further, in Suo Motu Writ Petition (Civil) No.3 of 2020 dated 23.03.2020, the Hon’ble Supreme Court, considering the situation arising out of the challenge faced by the country on account of Covid-19 and resultant

¶67

8

¶68

VS, J

¶69

C.R.P.No.2028 of 2024

¶70

difficulties faced by the litigants across the country in filing the petitions/all other proceedings, within the period of limitation prescribed under general Law of Limitation or Special Laws, extended the period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not, w.e.f.15^th March 2020 till further order/s to be passed, while directing that the said order is binding precedent to follow the same, on all the Courts/ Tribunals.

¶71

Having gone through the material on record including the impugned order and keeping in view the binding precedent as laid down by the Hon’ble Supreme Court in Suo Motu Writ Petition (civil) No.3 of 2020, it appears that the Court below has not properly appreciated the reasons explained by the revision petitioner and passed the impugned order by just reiterating the rival pleadings of the parties without expressing any opinion in dismissing the petition. Further, the Court below grossly erred in considering the binding precedent laid down by the Hon’ble Supreme Court in condoning the delay occurred in filing the petitions during Covid-19.

¶72

In view of aforesaid reasons, this Court is of the opinion that the order under revision suffers from serious legal infirmity warranting interference of this Court and hence, the order under revision is liable to be set aside.

¶73

Accordingly, the Civil Revision Petition is allowed. Consequently, the order dated 02.08.2024, in I.A.No.397 of 2022 in O.S.No.163 of 2010 passed by the learned Principal Senior Civil Judge at Gudivada is hereby set aside.

¶74

9

¶75

VS, J

¶76

C.R.P.No.2028 of 2024

¶77

The learned Principal Senior Civil Judge, Gudivada, shall consider I.A.No.397 of 2022 and the petition filed for setting aside the ex parte decree dated 29.09.2016 on its own merits in accordance with law and keeping in view the binding precedents as laid down by the Hon’ble Supreme Court. As the suit is of the year 2010, the learned Principal Senior Civil Judge, Gudivada, shall dispose of the suit vide O.S.No.163 of 2010, as expeditiously as possible, preferably within a period of six (06) months from the date of receipt of a copy of this order.

¶78

As a sequel, miscellaneous applications, pending, if any, shall also stand closed.

¶79

__________________ JUSTICE V.SUJATHA

¶80

Date:12.09.2025 KBN

Koneru Kamala Kumar v. Potineni Sita Ratna Kumari

Case brief

What is this about?

What did the court decide?

Koneru Kamala Kumar v. Potineni Sita Ratna Kumari

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

K.Vivekananda, Vs Karri Venkata Reddy

Smt.K.Uma Bai Vs Smt.K.Veeru Bai

Dasari Narasimha Rao Vs Bodapati Anusha

Gatti Sarojini Vs Vakacherla Veera Naga Venkata Satya Suresh

Adireddy Vijaya Vs Mr M N Harendra Prasad IAS

Challagolla Siva Ranga Ratna Kumari Vs Gorella Srinivasa Rao