In this revision petition, Justice K.C. Bhanu dismissed the challenge against orders confirming an ex parte preliminary decree. The Supreme Court upheld the trial court's view that the petitioner failed to satisfactorily explain his absence for the hearing where the decree was passed.
The Civil Revision Petition is dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.5660 OF 2009.
DATED:11-03-2010.
Between:
B.Rajender
… Petitioner-Defendant No.2
and
Santhoshi Devi and others
…Respondents-Plaintiffs
THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.5660 OF 2009.
ORDER:
This petition is filed under Article 227 of the Constitution of India challenging the order, dated 08-10-2009, in C.M.A.No.69 of 2009, on the file of the Chief Judge, City Civil Court, Hyderabad, in confirming the order, dated 02-062008, in I.A.No.49 of 2008 in O.S.No.2273 of 2004, on the file of the VIII Additional Senior Civil Judge (FTC), City Civil Court, Hyderabad, wherein the application filed under Order 9 Rule 13 CPC to set aside the ex parte preliminary decree, dated 06-062005, was dismissed.
2. Learned counsel appearing for the petitioner contended that since the delay in filing the petition under Order 9 Rule 13 CPC has been condoned, for the same reason, the trial Court
ought to have set aside the ex parte preliminary decree, dated 0606-2005 and hence, he prays to set aside the impugned orders.
3. On the other hand, learned counsel appearing for the respondents contended that the absence of the petitioner on 0606-2005 has not been explained, that having engaged an Advocate, the petitioner herein failed to file written statement, that both the Courts below rightly dismissed the application and there are no grounds to interfere with the same.
4. Learned counsel for the petitioner relied on a decision reported in G.VISWESHWARUDU V STATE BANK OF INDIA AND ANOTHER[1] , wherein it was held thus:
“Once that fact is accepted by the court, different standards cannot be applied in considering the application to set aside the exparte decree. The self same reasons are the reasons for his failure to appear in court on the day when the suit stood posted for trial. Therefore, the lower court has committed an error or law in holding that the Doctor has not been examined and, therefore, the burden which admittedly lay on the appellant was not discharged.”
There is no dispute about the law down by this Court. But, the question is whether the petitioner has satisfactorily explained his absence on the date when the preliminary decree was passed. The petitioner after receipt of summons engaged an Advocate, but has not filed written statement. No reason was given by the petitioner for his absence on
06-06-2005. Therefore, the trial Court rightly set the petitioner ex parte and an ex parte preliminary decree was passed, which was confirmed by the appellate Court. Therefore, there are no grounds to interfere with the orders under challenge.
5. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs.
K.C.BHANU, J
DATED:11-03-2010 Hsd
[1] 1985 ALT (NRC) 113
3 issues framed by the court
Whether the civil court should interfere with the dismissal of an application to set aside an ex parte preliminary decree when the petitioner failed to explain his absence despite engaging an advocate
Whether condonation of delay for filing a written statement requires the same explanation for the absence on the date the decree was passed.
Whether the trial court erred in holding that the petitioner's dispute facts were not explained.
Colour shows how this judgement treated each authority
G.VISWESHWARUDU V STATE BANK OF INDIA AND ANOTHERApplied¶15
1985 ALT (NRC) 113
2 provisions across 2 enactments
B.Rajender
Santhoshi Devi and others
K.C.BHANU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
