Allowed

M/s. Dharmaja Real Estates Pvt. Limited v. G. Hanumantha Rao

Telangana HC14 Oct 2009CMA/776/2009

Case brief

AI extract

What is this about?

This common judgment allowed a civil revision petition and miscellaneous appeal. The High Court set aside the lower court’s order dismissing applications to condone delay and set aside an ex parte decree, ruling that lack of proper notice before restoration justified condoning the subsequent filing delay.

What did the court decide?

Set aside the Common Order of 12th June, 2009, and allowed I.A.Nos. 729 and 730 of 2009 to condone delay and set aside the ex parte decree.

M/s. Dharmaja Real Estates Pvt. Limited Vs G… — Execution and Attachment | Telangana HC (2009)

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The Hon’ble Sri Justice A.Gopal Reddy and The Hon’ble Sri Justice B.Chandra Kumar

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Civil Miscellaneous Appeal No.776 of 2009 and Civil Revision Petition No.3213 of 2009

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Common Judgment: (per Hon’ble Sri BCK, J)

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Civil Revision Petition No.3213 of 2009 and Civil Miscellaneous Appeal No.776 of 2009 are directed against Common Order, dated 12^th June, 2009, passed by the learned IV Additional District Judge, Ranga Reddy District, in I.A.Nos.729 and 730 of 2009 in O.S.No.156 of 2003 pending on his file.

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By the impugned Order, the learned IV Additional District Judge, Ranga Reddy District, dismissed I.A.Nos.729 and 730 of 2009, filed by the appellant/petitioner/defendant, to condone 14 days delay in filing the petition under Order IX Rule 13 of the Civil Procedure Code, and to set aside ex parte decree, dated 30-09-2008, in O.S.No.156 of 2003 respectively.

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Since both the Civil Revision Petition and the Civil Miscellaneous Appeal arise out of the same suit between the same parties, they are being disposed of by this Common Order. For the sake of convenience, the parties shall hereinafter be referred to as arrayed in the suit.

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The brief facts necessary for disposal of these matters are as follows:

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The plaintiffs filed O.S.No.156 of 2003 for specific

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performance of an agreement of sale, dated 19-09-2002, said to have been executed by the sole defendant in the suit. During pendency of the said suit on the file of the learned IV Additional District Judge, Ranga Reddy District, although the matter underwent several adjournments and costs were imposed, the plaintiffs failed to adduce evidence, and as such, the suit was dismissed for default on 17-032006. Thereafter, the plaintiffs filed I.A.No.192 of 2008, for restoration of the above suit, along with another application being I.A.No.958 of 2006 to condone the delay in filing the same. Both the applications were allowed.

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The main grievance of the defendant is that no notices were served on him before allowing I.A.Nos.958 of 2006 and 192 of 2008, as a result of which, the suit was restored and an ex parte decree came to be passed on 30-09-2008 and that he came to know about the same on 09-11-2008 and immediately thereafter, he filed I.A.Nos.729 and 730 of 2008, but the same were dismissed.

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Heard the learned Counsel for the parties and perused the impugned order.

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While considering I.A.Nos.729 and 730 of 2008, the lower Court framed the following three points for consideration:

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1. Whether the decree passed on 30-09-2008 is an ex parte decree ?

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2. Whether there is proper notice to the defendant before restoring the suit on its original file ?

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3. Whether the defendant assigned any sufficient

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cause for condoning the delay ?

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The lower Court answered the first two issues in favour of the defendant holding that before restoration of the suit, no proper notice was given to him and that the same resulted in passing of ex parte decree, dated 30-09-2008. However, on issue No.3, the lower Court observed that though the defendant came to know about passing of an ex parte decree on 09-11-2008 itself, but he filed the petition to set aside the said ex parte decree on 14-11-2008 and that there is no proper explanation for such delay since all the four days were working days.

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Having held that there was no proper notice to the defendant before allowing I.A.Nos.958 of 2006 and 192 of 2008 filed by the plaintiffs for restoration of the suit, we are of the view that the lower Court is not justified in holding that the defendant failed to explain the delay of four days in filing I.A.No.730 of 2008 to set aside ex parte decree. The defendant came to know about passing of the ex parte decree only on

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09-11-2008 and from that date he would get 30 days time to file an application to set aside the same and to restore the suit. Moreover, it is always desirable if disputes are settled on merits rather than on technicalities. In view of the same, we are of the view that the lower Court failed to exercise its jurisdiction for condoning the delay in filing I.A.No.730 of 2008 to set aside the ex parte decree, dated 30-09-2008, in O.S.No.156 of 2003. We, accordingly, set aside Common Order, dated 12^th June, 2009, passed by the learned IV Additional District Judge, Ranga Reddy District, and allow I.A.Nos.729 and 730 of 2009 in O.S.No.156 of 2003. The

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parties are directed to appear before the lower Court on the date fixed and proceed with the suit without further delay in the matter. The lower Court is directed to dispose of the suit expeditiously by the end of this year.

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The Civil Revision Petition and the Civil Miscellaneous Appeal are, accordingly, allowed.

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__________________ (A.Gopal Reddy, J)

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__________________ (B.Chandra Kumar, J)

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14^th October, 2009 lur

M/s. Dharmaja Real Estates Pvt. Limited v. G. Hanumantha Rao

Case brief

What is this about?

What did the court decide?

M/s. Dharmaja Real Estates Pvt. Limited v. G. Hanumantha Rao

Case brief

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