Allowed

Namratha Reddy D/o. B.Vittal Reddy v. M/s. Global Quest Consultants

Telangana HC13 Oct 2014CRP/4267/2012

Case brief

AI extract

What is this about?

High Court allowed a revision challenging the trial court's order restoring a suit for eviction. The trial court set aside an ex parte decree filed five years after the decree passed, despite earlier dismissal of a partner's similar application on limitation grounds. The High Court set aside the order as an error of law.

What did the court decide?

The order passed by the trial court is set aside. Miscellaneous petitions disposed of.

Namratha Reddy D/o. B.Vittal Reddy Vs M/s. Global… — Execution and Attachment | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

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C.R.P. No.4267 of 2012

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ORDER:

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The petitioner filed O.S.No.1564 of 2006 against the respondents herein in the Court of V Senior Civil Judge, City Civil Court, Hyderabad, for eviction from the suit schedule premises and recovery of arrears of rent. An ex parte decree was passed on 19-12-2007. The respondents 1 and 2 i.e. defendants 1 and 3 filed I.A.No.92 of 2005 under Order IX Rule 13 C.P.C., with a prayer to set aside the ex parte decree. It was pleaded that the summons in the suit were not served upon them.

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The petitioner filed a detailed counter in the I.A. She pleaded that the 1^st respondent is a partnership firm, respondents 2 and 4 are its partners and that after the suit was decreed ex parte, the 4^th respondent herein i.e. the defendant No.2 filed an application under Order IX Rule 13 C.P.C., and since there was a delay of 52 days in filing it, he filed I.A.No.527 of 2008. It was also pleaded that the trial Court dismissed the I.A.No.527 of 2008 through order dated 01-042009, and in that view of the matter, I.A.No.92 of 2012, filed by the respondents 1 and 2 is not at all maintainable.

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It was also urged that though there was enormous delay running to years together, the respondents 1 and 2 did not file an application, and the trial Court has straightaway entertained the application filed under Order IX Rule 13 C.P.C. Through a docket order dated 30-032012, the trial Court allowed the I.A.No.92 of 2012. Hence, this

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revision.

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Heard Sri P. Raja Sripathi Rao, learned counsel for the petitioner and Sri Lasetty Ravinder, learned counsel for the respondents.

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The suit filed by the petitioner was the one for eviction from the schedule properties. The 1^st defendant in the suit is a partnership firm and defendants 2 and 3 are said to be the partners. A n ex parte decree was passed in the suit. Thereupon, one of the partners i.e. defendant No.2, respondent No.4 herein filed an application under Order IX Rule 13 C.P.C. Since there was a delay of 52 days, he filed I.A.No.527 of 2008, under Section 5 of the Limitation Act (for short ‘the Act’). Through a detailed order, running into 9 pages, the trial Court dismissed the I.A. Though the delay involved was just, 52 days, the trial Court found that it was not at all explained. The I.A was dismissed and thereby, the application filed under Order IX Rule 13 C.P.C was also dismissed. The same assumed finality.

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Even if an application filed under Order IX Rule 13 C.P.C., filed by one of the defendants, to set aside and ex parte decree is dismissed, the other defendants can file similar applications, provided, the case of such defendants is different from the one, whose I.A., was dismissed. It has already been mentioned that the

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1^st respondent is a firm and respondents 2 and 4 are its partners. The result in the application filed by one partner would bind the firm, as well as the other partners. Not a word is said in the application filed by the respondents 1 and 2, as to how they are different from respondent No.4.

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Even otherwise, there was enormous delay in filing the I.A.No.92 of 2012. The ex parte decree is dated 19-12-2007, whereas the I.A was filed five years thereafter. The basis pleaded by the respondents 1 and 2 for not filing any application under Section 5 of the Act is that I.A. under Order IX Rule 13 C.P.C., is filed within 30 days from the date of knowledge. The trial Court did not agree with that contention. It was clearly observed that the summons were served upon the defendants 1 and 3, and since they did not turn up, they were set ex parte, and ex parte decree was passed.

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Still, no attention was placed to the aspect of limitation. Unfortunately, such instances of indifference to important aspects,

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in certain Courts, is on the rise. It is indeed shocking that an application for setting aside an ex parte decree, filed at the stage of execution, was entertained, though it was filed five years after the decree, without verifying the question of limitation. Another important aspect is that the trial Court did not even take note of the plea of the petitioner herein, that an application filed by the respondent No.4, i.e., another partner of the 1^st respondent firm was dismissed.

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Viewed from any angle, the order passed by the trial Court cannot be sustained. The C.R.P is accordingly allowed and the order under revision is set aside.

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The miscellaneous petitions filed in the C.R.P., shall also stand disposed of. There shall be no order as to costs.

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__________________________ L.NARASIMHA REDDY,

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Dt.13-10-2014

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Namratha Reddy D/o. B.Vittal Reddy v. M/s. Global Quest Consultants

Case brief

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Namratha Reddy D/o. B.Vittal Reddy v. M/s. Global Quest Consultants

Case brief

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What did the court decide?

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