Partly allowed

Madhubashi Vijaya Saradhi v. K.H.Sukanya

Telangana HC2 Aug 2022CRP/2733/2017

Case brief

AI extract

What is this about?

The bench allowed the Civil Revision Petition partly, setting aside the lower court's order directing the petitioner to deposit suit costs of Rs. 30,000 and file a written statement. The High Court upheld the condonation of a 417-day delay subject to payment of Rs. 5,000 costs.

What did the court decide?

The order directing deposit of suit costs of Rs. 30,000 and filing of written statement in the delay application was set aside; costs of Rs. 5,000 to be paid by the respondent.

Madhubashi Vijaya Saradhi Vs K.H.Sukanya — Civil Procedure and Limitation | Telangana HC (2022)

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<br>

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HIGH COURT FOR THE STATE^{OF TELANGANA AT HYDERABAD}

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TUESDAY ,THE SECOND^{DAY OF AUGUST} TWO THOUSAND AND^TWENTYT'WO

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PRESENT

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THE HONOURABLE SMT^{JUSTICE P.SREE SUDHA}

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CIVIL REVIS^{ION PETITIONNO:2733 0F 2017}

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Petition under Article^{227 of the constitutionof lndia, aggrieved by the} order Dated 28.04.2017^{passedin 1.A.No.375of 20'16 in o.s.No.B32of 2011 by} the Hon,ble XVI Additional^{District And sessionsJudgescourt cum xvl Addl} Metropolitan Sessions^{Judge: Ranga Reddy District At Malkajgiri}

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Between:

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1 Madhubashi Vijaya Saradhi,^{S/o.,M.V.S.V.Ranagchary' Ag9 48. years,} $*A-Fyo. i-loo,^{Sree'Colony,Ramakrishnapurbm Neredmet X Road} -Occ: R.R.District.

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2 Kandalarn Srinivasan,^{S/o. late K.L.N.T. Chary Age: 44 y-ea.s,Occ:Service} ii.oiesenteO bv itS'GPA^{holder P.Krishna' S/o. late P'R Swamy,Age:40} vL-Jr.,-^{oti-AdJocate,Rl/o. H.No.17'Street No' 1, Himayathnagar'} Hyderabad.

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.....PETITIONERS/RESPONDENTS/RESPONDENTS

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AND

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K.H.Sukanya, D/o. S.Sanjeeva^{rao, Age: 38 years, Occ: Agriculture,Ri/o'H No'S-} 10-1 72, Faichmaidan Road,^Hyderabad.

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.....RESPONDENT/PETITIONERYPLAINTIFF

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l.A. NO: 1OF 201^{7{CRPMP.NO:3600 oF 2017</sup>}

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Petition under section^{151 CPC praying that in the circumstancesstated} in the affidavit filed^{in supportof the petition,the High court may be pleasedto} suspend the order^{passed in l.A No.375 of 2016 in O S No'832 of 2011} dt.d1.O4.2017 by the XVI^{Additional District Judge and SessionsJudge, cum.Vl} Addl.Metropolitiin^{Sessions Judge, Ranga Reddy Districtat Malkaigiri pending} disposal of the above^CRP.

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lA NO: 1 OF 2019

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Between

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K.H.Sukanya, D/o. S.Sanjeeva^{rao, Age: 39 years, Old: Fi/o. H.No 5-1 l-4-} 322t312, Chilkalguda, Seiunderabad.^{PresentlyRl/o.H.No.5-10-'1 72,} Fathemaidan Road Hyderabad.

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PETITIONER/RESPONDENT

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AND

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1 Madhubashi Vijaya Saradhi, S/o.,M.V.S.V.Ranagchary. Age 48 years, Occ: !u1vi"g,^{FyO. 37-100,Sree Cotony, Ramakrishiapurbm} [tereAnlei i'n""I R.R.District.

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{andalam Srinival?n, S/o late K:L.N.T. Chary Age: 44 years, Occ: Service Represented by itS'GpA hotder p Krishna, S7o. %te p.h.S*imy, nd,''i0 yga.rs, Occ: Advocate, Rio. H.No.17, Street No. t, Himjyathijgar, Hyderabad.

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.....PETITIONERS/RESPONDENTS/RESPONDENTS

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Petition under section 151 cpc praying that in the circumstances stated in the affidavit filed in support of the petition, irre nign court may be pleased to vacate the order in cRprup No.3600 0f 2017 in cRp.No.273Z oi Zott,at.x-oa_ 2017

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Counsel for the Petitioners: SRl. K MOHAN

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Counsel for the Respondents: CHANDRASEN LAW OFFTCES

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The Court made the following: ORDER

PSS,J CRP 2733

HON'BLI.] SMT JUSTICE P. SITEE SUDHA CIVII, REVISION PETITION No.2733 OF 2017

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ORDEII.:

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This Civil Revision Petition is preferred against the orders dated 28.04.2017 in I.A. No.375 of 2016 in O.S.No.832 of 201I^passed by the XVI Additional District Judge, Ranga Reddy District, at Malkajgiri.

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The suit in O.S.No.832 of 2011 is hled by^{Madhubashi Vijaya Saradhi} and Kandalam Srinivasan against K.H. Sukanya Dio^{S. SanjeevaRao,R/o} H.No.l l-4-3221312, Chilkalguda, Secunderabad, for^{declaration, possession} and mesne profits. An application is filed by^{K.H. Sukanya in I.A. No.375of} 2016 for condoning the delay of417 days in^filing the^{applicationfor setting} aside the ex parte order dt. 17.10.2014.^{The plaintiffs obtained judgment and} decree by suppressing the facts. She filed O.S.^{No.1744of2009against the} plaintiffs herein in which the interim injunction was^granted along^{with police} protection in her favour. The plaintiffs herein are defendants^{No. I and 2 in} O.S.No.1744 of 2009. In the^present suit^{no notice was servedupon her while} she is in peaceful possession of the^{property.Her watchmari informedher on} 02.11.2015 that somebody entered^{into the suit property and demolishedtwo} rooms. After enquiry, she came to^know about^{ex parte orderin the present} suit by way of publication in Bhavitha^{Daily paper.She stated that plaintiffs}

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P5S,J cRP 2733

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have no right over the suit schedule property and they never in possession of the same.

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In a counter filed by the respondents/plaintiffs they stated that they filed E.P. No.12 of 2015 and the Court delivered the possession on 16.10.2015. Summons were issued to the petitioner on the address given by her at Chilkalguda and more than three times the process server went to the said address and the petitioner avoided to receive the summons, as such, they gave publication. She has not explained the abnormal delay of 417 days. The delivery warrant was executed on 16.10.2015. Even if the knowtedge is taken from the date of said application, she filed this application on 07.01.2016 after three months and no explanation is given by her for the delay from 16.10.2015 to 07.01.2016. The petitioner in the application stated that her name is mentioned as K.M. Sukanya instead of K.H. Sukanya.

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The plaintiffs herein filed the suit for declaration regarding the immovable property admeasuring 600 sq. yards in Sy.No. 13 and 14 of Valluvar Nagar, Ammuguda village and for recovery of possession. In fact, she also filed the suit in O.S.No.1744 of 2009 and obtained interim orders in her favour. She further stated that in fact, both the suits were filed in Ranga Reddy Court, but later O.S.No.l744 of 2009 was transferred to Court at Malkajgiri. She stated that summons were returned with an endorsement "door locked, no such person in the given address" and that publication was

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P55,1 cRP 2733

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ordered and it was filed on 18.10.2012 and after publication, she was set ex parte. The trial Court after considering the arguments of both sides, allowed the application subject to petitioner depositing suit costs of Rs.30,000/- and subject to payment of costs of Rs.5,000/- and also subject to filing of written statement, and for compliance, posted to 03.07.2017. Aggrieved by the said order, the plaintiffs in the suit filed the present Civil Revision petition.

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The revision petitioners/plaintiffs stated that the respondent/defendant has not explained the reason for the delay of more than 75 days from 16.10.2005 to 07.01.2016. She gave differenr addiess in the present application than the address given by her in o.s.No .1744 of 2009 and it falsify her contention that she was not aware of the suit. They further contended that this is only delay condonation petition to set aside the ex parte order, but the trial court imposed costs and also directed to file written statement, and such order of the trial court is illegal and is liable to be set aside. The trial court erred in allowing the petition and thus, requested the Court to set aside the same.

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This application is filed for condonation of delay of 417 days to set aside the ex parte order dt. 17. 10.2014 passed in O.S.No.832 of 2011 on the ground that no notice was served upon her. The respondents stated that she was residing in the said address when the notices were served upon her, but the petitioners herein manipulated and got them returned with an endorsement

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P55,J cRP 2733

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that she is not available in the said address and by playing fraud, obtained ex parte order. She stated that fiaud alone vitiates everything and apart from that she stated that she filed O.S. No.1744 of 2009 against the plaintiffs herein and also against Kalyan Constructions in which interim injunction was granted and it was made absolute and police protection was also granted in her favour. Plaintiffs in the suit are defendants in O.S. No. I 7 44 of 2009. Moreover, they are represented by Sri K. Mohan, Advocate, in that suit and also the same advocate in the present suit. This fact was not stated by the petitioners. The trial Court after considering the reasons stated by both parties rightly condoned the delay as it is only delay condonation petition to condone the delay of 417 days and the said period is not properly explained. The condonation ofdelay on costs ofRs.5,000/- is proper, but the direction to pay suit costs of Rs.30,000/- and also to file written statement in this application is €rroneous and the same is liable to be set aside.

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Accordingly, this Civil Revision Petition is allowed in parr by setting aside the orders of the trial court in respect of ordering to deposit suit costs of Rs.30,0001 and filing of written statement, and confirmed the orders of the trial Court regalding condonation of delay on payment of costs of Rs.5,000/-. As it was not specifically mentioned by the trial court as to whom the costs of Rs.5,000/- is to be paid, the respondent herein is directed to pay costs to the

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P55,J cRP 2733

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Revision Petitioners/plaintiffs within one rnonth from the date of this order.

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No costs.

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Miscellaneous petitions, if any, pending shall stand closed.

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SD/.B.SATYAVATHI DEPUFREGISTRAR //TRUE COPY// SECTION OFFICER

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To,

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The XVI Additional District And Sessions Judges Court Cum XVI Addl -^{Metropolitan Sessions Judge: Ranga Reddy District At MalkajgiriRanga} Reddy District 2. One CC to SRI K MOHAN Advocate [OPUC] 3. One CC to SRl. CHANDRASEN LAW OFFICES Advocate tOpUCl 4. Two CD Copies

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One Sapre Copy {

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HIGH COURT

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DATED:0210812022

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'J s 1r{t S f;g
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() 2 s sEP 2r2

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ORDER

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CRP.No.2733 ot 2017

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PARTLY ALLOWING THE CIVIL REVISION PETITION WITHOUT COSTS

Madhubashi Vijaya Saradhi v. K.H.Sukanya

Case brief

What is this about?

What did the court decide?

Madhubashi Vijaya Saradhi v. K.H.Sukanya

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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