Boya Chinna Naganna Vs Chakali Gokari

The Civil Revision Petition is filed under Article 227 of Constitution of India against the order dated 22.11.2024, dismissing the I.A.No.957 of 2024 in O.S No.212 of 2023 on the file of Civil Judge (Junior Division), Nandikotkur, filed under Order IX rule 7 CPC, seeking to set aside the ex parte order dated 03.05.2024, and to receive written statement and to allow the petitioner to contest the suit proceedings.

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The plaintiffs filed suit against the petitioner and two others seeking permanent injunction. On 03.05.2025, as there was no

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representation for the defendant No.3, who was called but found absent and written statement of the defendant No.3 was not filed, and statutory period lapsed, the trial Court set defendant No.3 ex parte and adjourned the case to 11.07.2025 for the plaintiffs’ evidence.

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On 03.09.2024, defendant No.3 filed the aforesaid petition i.e., IA.No.957 of 2024 stating that he could not attend before the Court on 03.05.2025 because he suffered from loose motions and that the absence is neither intentional nor deliberate and that the written statement was filed along with the petition to show his bona fide to contest the suit on merits as he has good grounds to succeed the suit. The petition was opposed by the respondents by filing the counter resisting the petition stating that the petitioner filed vakalat on 15.11.2023 and the case was adjourned to 09.01.2024 for filing written statement and the written statement was not filed inspite of lapse of time to file the written statement and that if the petitioner needs extension of time to file written statement, he has to file the petition stating the reasons and the Court has to give reasons in writing for extension of time and not later than 90 days from the date of service of summons. It is also stated that the petitioner approached the Court by filing this petition, 268 days after setting him ex parte and that too without proper reasons for non-appearance and non filing of the written statement within time. It is also contended that the petition under Order IX rule 7 CPC is not applicable to the present case because the defendant failed to appear on the day fixed for hearing.

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After hearing both parties, trial Court dismissed the petition accepting the contentions of the respondents / plaintiffs. It is further observed that the petitioner was vigilant and that the Court would protect only those who are vigilant but not those who are dormant.

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Aggrieved by the order, this revision petition was filed.

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The learned counsel for the petitioner submitted that the trial Court erroneously dismissed the petition inspite of valid reasons stated by the petitioner for non-appearance and not filing the written statement on the date of hearing and that the trial Court ought to have given opportunity to the petitioner to contest the suit on merits instead of dismissing the petition on hyper technical grounds.

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The learned counsel for the respondents / plaintiffs contended that the petition is not maintainable under Order IX rule 7 CPC as the petitioner made appearance, but failed to file the written statement in time. He further stated that the petitioner failed to prove the reasons stated for non-appearance and non-filing of the written statement. He further stated that Court cannot extend time beyond statutory limit for filing the written statement.

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Since the trial Court recorded that the defendant No.3 was set ex-parte by exercising its jurisdiction under Order IX rule 7 CPC, remedy for the defendant lies under the same provision to get order set aside by showing good cause for his previous non appearance. The petitioner has to show the good cause for non appearance on the date when he was set ex-parte and not for the

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period subsequent to the order. Therefore, just because 268 days lapsed from 03.05.2024 till the date of filing of the petition, it is not relevant consideration. What is to be examined is whether the petitioner shows good cause for non-appearance on 03.05.2024. According to the petitioner, he suffered from the ill-health for the above stated reason. Of course, no documentary evidence is filed, but, it is not sine qua non since it is common to take medicine for simple illness like one stated by the petitioner. What is stated by the petitioner need to be disbelieved in the absence of other circumstances on record to show that such statement is false. In the civil cases, unlike in the criminal cases, proof beyond reasonable doubt is not required to establish the fact. As such, believing statement of the petitioner made on oath, the trial Court ought to have considered the reasons stated by the petitioner. Without examining the same, merely because of the opportunity earlier given to the petitioner for filing written statement and the petitioner had not availed the opportunity, the trial Court declined to grant relief by taking into consideration all circumstances which alone are not sufficient to examine whether to grant or refuse the relief under Order IX rule 7 CPC. Moreover, the petitioner enclosed the written statement along with the petition to show his bona fide . Every endeavour shall be made by Court to adjudicate the matter on merits rather than hearing only one party, in the absence of deliberate conduct of the party to drag on the proceedings and defeat the cause of justice. At the most, some terms could have been imposed on the petitioner to grant the relief. As trial Court failed to duly consider the record and exercise discretionary jurisdiction, it is a matter to interfere with the impugned order.

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In the result, the revision petition is allowed by setting aside the order dated 22.11.2024 in I.A.No.957 of 2024 in O.S No.212 of 2023 on the file of Civil Judge (Junior Division), Nandikotkur, on the condition that the petitioner shall pay respondents / plaintiffs an amount of Rs.5000/- within one month from the date of receipt of copy of the order, failing which the petition shall stand dismissed without any further order.

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