Villuri Appalanarasamma Vs Kondapalli Venkata Lakshmi

VILLURI APPALANARASAMMA, W/O. LATE SOMUNAIDU, HINDU, AGED 68 YEARS, HOUSEHOLD DUTIES, R./AT KARRI PEDDAIAHGARI VEEDHI, GAVARAPALEM, ANAKAPALLE, VISAKHAPATNAM DISTRICT.

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...PETITIONER

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AND

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KONDAPALLI VENKATA LAKSHMI, W/O. LATE VENKATA LAKSHMI NARAYANA MURTHY, HINDU, AGED ABOUT 63 YEARS, R/AT D.NO.7-7-17, KONDAPALLIVARI STREET, ANAKAPALLE, VISAKHAPATNAM DISTRICT.

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KONDAPALLI VENKATA RAMA SASTRY, S/O. LATE VENKATA LAKSHMI NARAYANA MURTHY, HINDU, AGED ABOUT 42 YEARS, R/AT KONDAPALLIVARI STREET, ANAKAPALLE, VISAKHAPATNAM DISTRICT.

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KONDAPALLI KAINESWARI SUDHA, D/O. LATE VENKATA LAKSHMI NARAYANA MURTHY, HINDU, AGED ABOUT 44 YEARS, R/AT D.NO.7-7-17,

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KONDAPALLIVARI STREET, ANAKAPALLE, VISAKHAPATNAM DISTRICT.

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KONDAPALLI USHA KALYANI, D/O. LATE VENKATA LAKSHMI NARAYANA MURTHY, HINDU, AGED ABOUT 45 YEARS, R/AT D.NO.7-7-17, KONDAPALLIVARI STREET, ANAKAPALLE, VISAKHAPATNAM DISTRICT.

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PARIMI JANI, W/O. RAMARAO, HINDU, R/AT KANUKURTHYVARI STREET, VIZIANAGARAM TOWN AND DISTRICT.

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NISTALA RAMA, D/O. RANGARAO, HINDU, R/AT GANDHINAGARAM, ANAKAPALLE, VISAKHAPATNAM DISTRICT.

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SARAGADAM NARASINGA RAO NARASAMMA, S/O. APPANNA.(DIED)

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SARAGADAM VIJAYA LAKSHMI, W/O. NARASINGARAO @ NARASAMMA (DIED)

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KANDREGULA ATCHAYYAMMA, W.O LATE SANKARA RAO, R/AT NAVODAYA SCHOOL, NEAR NOOKAMBIKA ARCH, BY-PASS ROAD, GAVARAPALEM, ANAKAPALLE.

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KANDREEGULA ATCHAYYAMMA, W/O LATE SANKARA RAO, R/AT NAVODAYA SCHOOL, NEAR NOOKAMBIKA ARCH, BY-PASS ROAD, GAVARAPALEM, ANAKAPALLE.

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KONATHALA SOMINAIDU, S/O. APPARAO, NAVODAYA SCHOOL, NEAR NOOKAMBIKA ARCH, BY-PASS ROAD, GAVARAPALEM, ANAKAPALLE.

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KONATHALA KOTESWARA RAO, S.O. APPARAO, NAVODAYA SCHOOL, NEAR NOOKAMBIKA ARCH, PASS ROAD, GAVARAPALEM, ANAKAPALLE.

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SILAPARASETTI SRAVANI, W.O. SRINIVASA RAO, HINDU, MAJOR, R/AT PENDURTHI.

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KORIBILLI PAVANI, W/O. SRINIVASARAO, HINDU, MAJOR, R/AT ANAKAPALLI

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SARAGADAM PRASADA RAO, S/O. LATE NARASINGARAO @ NARASAMMA, HINDU, AGED 38 YEARS, R/AT D.NO.17-5-217/11, LST FLOOR, THBTADA ROAD, NEAR NOOKAMBIKA ARCH, N.H.-5 ROAD, ANAKAPALLE. (R.R.5 TO 15 ARE NOT NECESSARY PARTIES TO THE CRP )

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...RESPONDENT(S):

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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 above CRP by setting aside the order dt. 07.01.2022 passed in I.A.No.1065/2019 in O.S.No.28/2014 on the file of X Additional District and Sessions Judge, Visakhapatnam and pass

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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 of all further proceedings in OS. No. 28/2014 on the file of the X Additional District and Sessions Judge,Visakhapatnam at Anakapalle pending disposal of the main CRP in the interest of justice and pass.

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Counsel for the Petitioner:

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1.A VARALAKSHMI

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Counsel for the Respondent(S):

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1.P VEERRAJU

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The Court made by following ORDER :

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The present Civil Revision Petition is filed against the order dated 07.01.2022 in I.A.No.1065 of 2019 in O.S.No.28 of 2014 passed by the learned X Additional District and Sessions Judge, Anakapalle, dismissing the petition filed under Order IX Rule 7 of the Code of Civil Procedure, seeking to set aside the ex parte order dated 21.01.2009.

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The revision petitioner herein is the 1^st defendant, respondents 1 to 4 herein are the plaintiffs and respondents 5 to 15 are the defendants 2 to 12 in O.S.No.28 of 2014.

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For the sake of convenience, the parties will be referred as they are arrayed in the suit.

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The plaintiffs filed the suit against the defendants for recovery of possession and for cancellation of registered sale deeds dated 14.02.1985, 01.04.1982, 18.03.1998, 12.12.1998 executed by the 3^rd defendant in view of decree and judgment dated 18.11.2004 passed in O.S.No.12 of 1988. The suit is posted to 21.01.2009 for filing written statement, but, the 1^st defendant neither attended the court nor filed her written statement on that day. Hence, she was set ex parte on

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21.01.2009. Later, the suit was transferred and renumbered in the year 2014. However, after a lapse of 10 years, the 1^st defendant filed the petition, along with her written statement, for setting aside the ex parte order dated 21.01.2009, on the ground that she could not file her written statement due to suffering from some viral fever at that relevant point of time. But, the Court below, having not convinced with the reasons, dismissed the petition vide its order dated 07.01.2022. Being aggrieved by the said order, the present Civil Revision Petition came to be filed.

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Heard the learned counsel for the Revision Petitioner and

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the learned counsel for the respondents.

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Learned counsel for the revision petitioner submits that the Court below grossly erred in taking into consideration the fact of filing written statement along with the petition for setting aside ex parte order and that the Court below failed to notice that the trial in the suit has not been commended.

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On the other hand, the learned counsel for the respondents/plaintiffs submits that the Court below was justified in dismissing the petition, as the revision petitioner filed the petition in order to drag on the proceedings and she did not

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explain the reasons for the abnormal delay, nor did she file any medical certificate in support of her pleading.

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The only point that arises for consideration herein is whether the court below is justified in dismissing the petition filed for setting aside the ex parte order dated 21.01.2009?

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Before dealing with the issue herein, it would be appropriate to refer the provisions of 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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A reading of the aforesaid provision makes it clear that where the court has adjourned the hearing of the suit ex parte , the defendant against whom ex parte order is passed, at or before such hearing, appears and assigns good cause for his/her previous non-appearance, he may be heard in answer to the suit

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as if he had appeared on the day fixed for his appearance, however, subject to certain terms as to costs.

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In the present case, the fact remains, the revision petitioner was set ex parte on 21.01.2009and it is not in dispute that the suit was later transferred to the present court from the court where the revision petitioner was set ex parte and renumbered in 2014. As seen from the record, it appears that even after the suit was transferred, the revision petitioner filed the petition for setting the ex parte order along with her written statement. Be that as it may, there was abnormal delay from the date of ex parte order dated 20.01.2009 till the date of filing the petition for setting aside the ex parte order. Hence, the revision petitioner ought to have filed the petition for setting aside ex parte order, along with a petition for condonation of delay in filing such petition. However, it is relevant to refer Article 123 of the Schedule of the Limitation Act, 1963, thus:

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Description of Application	Period of limitation	Time from which period begins to run
123.To set aside a decree	Thirty days.	The date of the decree or
passed ex parte or to rehear an appeal decreed or heard ex		where the summons or notice was not duly served,
parte. Explanation.—For the purpose of this article,		when the applicant had knowledge of the decree.

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substituted service under rule
20 of Order V of the Code of
Civil Procedure, 1908 (5 of
1908) shall not be deemed to
be due service.

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As per Article 123 of the Limitation Act, 1963, the period of limitation for filing the petition for setting aside the ex parte order,

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is thirty days from the date of ex parte order. But, the revision petitioner herein filed the petition for setting aside the ex parte order, after lapse of nearly 10 years that too without filing the petition under Section 5 of the Limitation Act, for condonation of delay in filing such petition, since the period of limitation for filing such petition expired long back. Without filing the delay condonation petition, for explaining the delay occurred in filing the petition for setting the aside ex parte order, such petition may not be considered. However, it is a well-settled principle that the rules of procedure are intended to be handmaid of justice, designed to advance its cause, and not to thwart it by placing undue emphasis on technicalities that may result in injustice to the parties.

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It appears from the material on record that the suit is filed for recovery of possession and for cancellation of sale deeds executed in favour of the defendants including the 1^st

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defendant/revision petitioner where the rights and interests of both parties on the immovable property are actively involved, which can be adjudicated exhaustively in the suit on adducing proper evidence on either side. The revision petitioner is appeared to have filed the petition for setting aside the ex parte order without there being any petition for condonation of delay in view of causing abnormal delay in filing the suit petition. Though it is true that rules of procedure are intended to be handmaid of justice to advance its cause, but at the same time it does not cause any hardship to the parties on mere technicalities. Suffice it to say that if the revision petitioner is directed to be filed the petition for setting aside the ex parte order, along with the petition for condonation of delay explaining the reasons for causing such delay, it would be better served to safeguard the interest of the parties in the suit proceedings.

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Coming to the order under revision herein, the Court below is well justified in dismissing the petition in the absence of proper explanation for causing the abnormal delay in filing the petition for setting aside the ex parte order dated 21.01.2009. The conclusions arrived at by the court below in dismissing the petition are just, reasonable and well founded in the

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circumstances of the case, and the same do not suffer from any infirmity calling for interference of this court in exercise of restricted revisional jurisdiction under Article 227 of the Constitution of India. Hence, the Civil Revision Petition is devoid of any merit and is liable to be dismissed.

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Accordingly, the Civil Revision Petition is dismissed, leaving it open to the revision petitioner to file a petition for setting aside the ex parte order dated 21.01.2009 along with appropriate application for condonation of delay in filing such petition explaining the reasons for such delay. It is made clear that on filing such petitions, the Court below shall consider such petitions on its own merits in accordance with law, uninfluenced by the observations made herein. There shall be no order as to costs.

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

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___________________ JUSTICE V.SUJATHA

LSP/Ksn

Date:18.09.2025

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