Sri Konam Brahmaiah Vs Smt.Manthena Yashoda Devi

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[³³⁸⁵¹

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IN THE HIGH COURT FOR TH STATE OF TELANGANA AT HYDE BAD

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MONDAY, THE TWENTY FOU TH DAY OF FEBRUARY TWO THOUSAND AN TWENTY FIVE

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PRESE T

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THE HON'BLE SMT. JU TICE K. SUJANA

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CIVIL MISCELLANEOUS A PEAL No: 340 of 2013

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Appeal filed under Order 43 Rule 1 f C.P.C. aggrieved by the order dated 17-06-2009 passed in 1.A.No.2235 of 2002 LG.OP.No.81B of 1996 on the file of the Court of the Principal District Judge, Ran a Reddy District at L.B.Nagar.

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Between:

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Sri Konam Brahmaiah, S/o.K.V.Swamy, Age:56 years, Occ: Service R/o.303, Mehri Priya Apartments, Bhagyanag Colony, Opp. to Opp. to to KPHB Colony,Colony, Hyderabad.

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Colony, Opp. to Opp. to to KPHB Colony,Colony,

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...Appel lanUPetitioner/Respondent

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AND

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Smt.Manthena Yashoda Devi, Wo. Gaoga Raju, Age:64 years, Occ Household R/o. H.No. 1 3-1 40, Gajuwaka, isakhapatnam.

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Respondents/RespondenUPetitioner

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l.A. NO: 1 OF 2013 CMAMP. NO: 791 OF 2 13

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Petition under Order 39 Rule 1 and r/w Section 15'1 of CPC praying that in the circumstances stated in the affidavit led in support of the petition, the High Court may be^pleased to restrain the res ondent from alienating the schedule property in LGOP.No.B18 of 1996 by the rincipal District Judge, Ranga Reddy District at L.B.Nagar to any third party or cr ating any third party interest, pending disposal of the above CMA.

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lA NO: 1 OF 2019

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Petition under order 39 Rule 1 nd 2 of CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant interim injunctio restraining the respondent her men, agents, servants, workmen, contractors, enchmen etc. from interfering with

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petitioner's peaceful possession and enjoyment of petition schedule property in Sy. No. 39 measuring 266.66 sq. yards situate at the ESIC House Building society, Nagole, Bandlaguda, LB Nagar, R.R.District by trespassing into^petition schedule property pending disposal of the above appeal.

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Counsel for the Appellant: Sri J. Seshagiri Rao

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Counsel for the Respondent: Smt. A.V.S. Laxmi

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The Court made the following: ORDER

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THE HON'BLE SMT. STICE K. SUJANA

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CTVIL MISCELLANEOUS EAL No.34O of 2013

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JUDGMENT:

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This Civil Miscellaneous Appe I is hled by the appellant to set aside the impugned order dated 17.0 .2OO9 in I.A. No.2235 of 2OO2 in L.G.O.P. No.818 of 1996 on the fil of the Principal District Judge, Ranga Reddy District at L.B.Nagar ( r short, 'the triai Court'). By the impugned order, the petition, filed u der Order IX Rule 13 of the CPC to set aside the ex parte order dated 2.O4 .2OOl , was dismissed by the trial Court.

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2 Heard Sri J.Seshagiri Rao, ed counsel for the appeliant as well as Sri Smt A.V.S.Laxmi, arned counsel for respondent. Perused the record

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3 Learned counsel for the ap ellanL firstlg submitted that the appellant has not appeared before the trial Court on the date of passing the ex parte order ted 12.O4 .2OO1 as there is communication gap between the app llant and his counsel on record, which can be condoned by treating t as a technicality. He secon-dlg submitted that whenever technical considerations and substantial justice are pitted against each other it is substantial justice that has to out weight the technical conside tion. He thirdlg submitted that the tria,l Court has erroneously^pas d the impugned order without considering the fact that a^subs tive right is vested within the

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2

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.SI(s,J C.M.A. No. 340 of 2013

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appellant. He lastlg submitted that no prejudice would be caused to the respondent, if the impugned order is set aside and prayed the Court to allow the Appeal.

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On the other hand, learned counsel for the respondent opposed the subrnissions made by the learned counsel for the appellant stating that the said L.G.O.P is of the year 1996. She further submitted that the trial Court has rightly passed the impugned order as the petition is barred by Section 5 of limitation Act. Hence, she prayed the Court to dismiss the Appeal.

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The Apex Court in the case of Dwarika prq.so'd (D) through

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.Lrs. Vs. Pritht i Raj Singhlat paragraph Nos. 1O to 12 held as under:

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"1O. In the ptesent case, Che dppellant hds tflErted. hls cola:r.sel to md.ndge the sult proceed.lngs. Howet er, he was /.ot made aware oJ the ex-parle d.ecree bg hls prevlous counsel. It is onLu dfter the appotntnleilt of the netu courtsel, Lhe appell(lnt qot to knolu about the ex parte decree. Therefore, the Additiondl Sesston_s Judse oualat not to haue exercised the reuisianal iurisd.icttoa in interferinq with the order of the Trial Court where it hod. exercised its dacretion in settinq osid.e the ex pafte dec.ee for iustifiobLe reosons accepttng the reosons giuen bg the defe dant dppellanL

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1 1. The Appellant ho's relied upon the foltouing iudqnents in supporl of his subnrr-ssrons. In Bhagma.l and OrsVs. Kuntudt I4l q.nd Others (SPL (C.) No.11259 oJ 2022) thi-s Court hetd as fouows;

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"12- It i-s ta be seen here that the questiott of deknl uos coryleteL11 interlinked uith the mprits of th.e mqfier. Tle appeLlant defenrlants had clearly pleaded. ttnt theu did rwt eo ier come to the court on account of the fact that theu did not knou about the order passed bg th.e @utt proceeditw ex parte and qlso the ex parte decree uLhich uas pq,ssed. It tuo_s .ft.other^{cledrla pleaded} that tl@U cone to know dbout the decree uhen thea uere serued uith the execution ratice. This rttos ttothinq, but a .justification nade bg the qppeLlantdefendants for mak q Order 9 Rule 13 appticdtbn dt the ttrne uh.ea it utgs actudllu made. This ua_s olso a uolid explandtian of the detdu. The question of filittg Ord.et 9 RuLe j3 oppltcotion uas, in our opinion, nghtlg cottsidered bu the appelldte cnuft on merits and thp oppeltate court uas absolutehl risht in caming to tlu2 cont:Lu-sion thdt the appellant- defendants utere

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ArisDg out ofSLP(C ) No.lL259 at 2022

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3

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SKS,J C.M.A. No. 34O of2013

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i Il l ,1 I

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( t

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:;*w$taxTx!r - .l..:l' .,;'

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fwug Justlfred^ln JTllng^the llcatlot under Ordet⁹ R.rle 73 cPc dt xhe^tlmeu'hen achtalls filed it and the deby tn tiUng the^aPP @as .rlso latlly etqlalneil on^{q.ccountof the} th(rt theg neter kneu about the dectee and. the stdrtlng the ex^pdrte proceedlngs dgalftst thern If Luo-s so, the Court^had actuallu anstlered tlv^reasons r tle dektu al,so. Under such cira)rnstcu$es,^theHighCou should not hqoe tq.ken the hgpertechnlcal vlew thdt separqte opplicatlon to@s fTled under Sectlo,r^5. 1 3 . Tle appLicahon^{under Order9} le 13 CPC it:;eLf had^dll rhe inqredienls of thc^dpplicotion r cnndonation of delay in makirw thtLt appLication.^Procedu i.s afier alL hand.maid of iustice."

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From th.e oboue cases,^{Lt i.s cLear} there uas rn need^to fite^a separate appliation for^conrlonation deLau in tht:^{presentcaseas} welL The Hiqh Court hos eredⁱⁿ a hyper technicnl^{weut and} mandatoru^{proukionof la ut-} concluding that there uos^{uiolation o} Endorsing such a uieut^{uould effectiue} m.ean ignoring^{the purqoseof} judicial procedure. The procedure stand in Lhe rDau^{of achieuiaq} iust^qnd fair^{oukome.In the present} e, the Appellant acted^bona fide^{and dlligentlg. Hrs conductdoes} uiolate clttg nie^of lau."

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(Emphasis SuPPlied)

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I I

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A piain reading of^{the above would} abundantly make it^{clear that if} sufficient reasons are^{given for condo} ation of delay while^{hling the} petition, the petition fi1ed under^Order IX Rule 13 of the^{CPC canbe} allowed.

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In the present case,^{1t ls apParen} that there is a^{communicatlon} gap between the appellant^{and his cou} sel on record, due^{to which,he} has not appeared^{beforethe trial Co} rt. Hence, this Court,^having n of the APex Court^inthe respectable agreement with^{the decis} aforesaid^judgment and also^consid ring the peculiar facts^and circumstances of the case,^{feels thate} ds of^{justice u'ould meet if the} matter is remanded to the trial^{Court for} fresh consideration.^Further,the appellant is directed to hle necessary^a plications before^the trial^Court and in turn,^{the trial Courtis directedto} consider the same

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S'KS,J CMA No.340 of2O13

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Accordingly, the Civil Miscelianeous Appeal is allowed. The impugned order dated t7.06.2009 passed in I.A.No.2235 of 2002 in L.G.O.P. No.S18 of 1996 by the Principal District Judge, Ranga Reddy District at L.B.Nagar, is hereby set aside and the matter is remanded to the trial Court for fresh consideration.

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Miscellaneous applications pending, if any, in this criminal pel ition shall sra ndclosed.

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Sd/. K.SHYLESI JOINT REGISTRAR

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,( "+ sEc+dr.ioFFlcER

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//TRUE^COPY/ '

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To, 1. The^{Principal District Judge, Ranga Reddy District at L B'Nagar'(with records'} , 5i:'."^{to sri J. Seshasiri Rao Advocatet^gllcf} ;. 5;; 6c^{io sr, A V S LlxmiAdvocate toPUCl}

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