whether one single application could have been filed by the petitioner/defendant for condonation of the delay and also to set aside the ex parte decree.= In M.A.QADER3, a Division Bench of this Court categorically held that where the grounds for seeking both such reliefs are the same, it would not be necessary that a separate application be filed for condonation of the delay. It was also pointed out that Section 5 of the Limitation Act, 1963, does not stipulate filing of a separate application there under.
THE HONBLE SRI JUSTICE SANJAY KUMAR
CIVIL REVISION PETITION NO.911 OF 2017
11-04-2017
P.Buchanna .. Petitioner
B.Yadagiri.. Respondent
Counsel for petitioner: Sri K.Sreenivas
Counsel for respondent: --
<Gist:
>Head Note:
? CASES REFERRED:
1. 2007 (6) ALD 819 = 2008 (1) ALT 475
2. 2002 (6) ALD 473 = 2002 (5) ALT 766
3. 1988 (1) ALT 783
4. 2005 (1) ALT 805
THE HONBLE SRI JUSTICE SANJAY KUMAR
CIVIL REVISION PETITION NO.911 OF 2017
O R D E R
This Revision Petition under Section115 CPC arises out of the
order dated 07.11.2016 of the learned II Additional Senior Civil
Judge, Ranga Reddy District at L.B.Nagar, in I.A.No.1156 of 2014 in
O.S.No.555 of 2013. The said suit was filed by the respondent herein
for specific performance of the alleged agreement of sale dated
13.10.2012 and was decreed ex parte on 01.04.2014. The petitioner
herein, the defendant in the suit, filed I.A.No.1156 of 2013 therein
under Order 9 Rule 13 CPC to set aside the said ex parte decree by
condoning the delay of 189 days in applying for the same. By the
order under revision, the Court below dismissed the said I.A.
Conventional means of service having failed, substituted service
of notice was effected upon the respondent/plaintiff by publication
thereof in Eenadu Telugu Daily newspaper, L.B.Nagar Edition. The
respondent/plaintiff however did not choose to enter his appearance
before this Court either in person or through counsel.
Perusal of the order under revision reflects that the Court below
dismissed the I.A mainly on the ground that the petitioner/
defendant had failed to file separate applications, one under Section 5
of the Limitation Act, 1963, seeking condonation of delay, and the
other under Order 9 Rule 13 CPC to set aside the ex parte decree.
The Court below further found that sufficient grounds had not been
shown by the petitioner/defendant to set aside the ex parte decree.
The issue that falls for consideration presently is whether one
single application could have been filed by the petitioner/defendant
for condonation of the delay and also to set aside the ex parte decree.
At the outset, it may be noted that Rule 55 of the Civil Rules of
Practice and Circular Orders, 1980 (for brevity, the Rules of 1980),
provides that separate applications must be filed for each distinct
relief prayed for, but goes on to state that the same would not be
necessary if the reliefs sought are consequential.
Reliance was placed by the Court below on S.SEKHAR BABU
V/s. Y.RAMAKRISHNA REDDY in support of its conclusion that two
separate applications had to be filed for the reliefs sought. Perusal of
S.SEKHAR BABU1 reveals that the earlier decision of this Court in
M.NARASIMHA REDDY V/s. BEGARI SAMUEL , which held to the
contrary, was distinguished on facts. However, the basis for the ratio
in M.NARASIMHA REDDY2, to the effect that two such separate
applications need not be filed, was the earlier decision of a Division
Bench of this Court in M.A.QADER V/s. MD.AZMAT ALI . Therein, it
was held that where the grounds for condonation of delay and for
setting aside an ex parte decree were the same, it would not be
necessary to file a separate application for condonation of delay. The
Division Bench observed that the power to do so vests in the Court
and if sufficient material is placed before the Court, wherefrom the
required satisfaction can be gleaned, the Court can admit the set
aside petition even after the period of limitation. The Division Bench
further pointed out that Section 5 of the Limitation Act, 1963, does
not in terms say that a separate application should be filed.
Despite this edict being culled out in M.NARASIMHA REDDY2,
the learned Judge who decided S.SEKHAR BABU1 distinguished
between the cases on the short ground that the defendant in
M.NARASIMHA REDDY2 was not served with summons unlike the
defendant in S.SEKHAR BABU1 and therefore, filing of a condone
delay petition was held to be not even necessary in the earlier case.
Significantly, the learned Judge also failed to take note of KAVALI
NARAYANA V/s. KAVALI CHENNAMMA , wherein another learned
Judge affirmed and followed the principle laid down in
M.NARASIMHA REDDY2. The learned Judge observed therein that as
per Rule 55 of the Rules of 1980, filing of individual applications for
separate reliefs is not a universal principle and as regards
applications under Order 9 Rule 13 CPC, condonation of delay,
whenever such applications are filed beyond the stipulated period of
limitation, is interconnected with the main relief, viz., setting aside of
the ex parte decree. The learned Judge further observed that in such
cases, the grounds for both reliefs would be the same and the two
reliefs are so interconnected with each other that one cannot exist in
the absence of the other. The learned Judge therefore concluded that
such reliefs can be said to squarely fall within the category of
consequential reliefs, which are exempted from the requirement of
Rule 55 of the Rules of 1980.
The aforestated case-law demonstrates that the learned Judges,
who individually decided S.SEKHAR BABU1, on the one hand, and
M.NARASIMHA REDDY2 and KAVALI NARAYANA4, on the other,
disagreed on the issue. However, it is not necessary to refer the matter
to a Division Bench for consideration on this contentious issue as
there is already an authoritative pronouncement of a Division Bench
on this aspect. In M.A.QADER3, a Division Bench of this Court
categorically held that where the grounds for seeking both such
reliefs are the same, it would not be necessary that a separate
application be filed for condonation of the delay. It was also pointed
out that Section 5 of the Limitation Act, 1963, does not stipulate
filing of a separate application there under. Reference was made to the
power vesting in the Court, if sufficient material is placed before it, to
arrive at the required satisfaction that the delay could be condoned so
as to admit the petition for setting aside an ex parte decree even after
the period of limitation. Further, applicability of the exemption under
Rule 55 of the Rules of 1980, when the consequential relief of setting
aside an ex parte decree is sought by condoning the delay in applying
for the same, was lucidly dealt with in KAVALI NARAYANA4.
This being the legal position, the Court below erred in applying
the law laid down in S.SEKHAR BABU1 overlooking the binding
Division Bench decision in M.A.QADER3, which held to the contrary.
As regards the finding of the Court below that sufficient
grounds were not established for setting aside the ex parte decree in
the present case, the affidavit filed in support of the I.A. reflects that
the same reason was cited by the petitioner/defendant to explain the
delay on his part and also for setting aside the ex parte decree. He
claimed that he had failed to take necessary steps in this regard
owing to old age and age-related ailments. The petitioner/defendant
is a senior citizen aged over 66 years. That being so, the Court below
ought to have been more liberal in its approach and should have also
considered the fact that landed property rights were at stake in the
suit. The Court below should therefore have afforded an opportunity
to the petitioner/defendant to put forth his case. Trite to state,
Courts are not expected to adopt a hidebound and pedantic approach
while dealing with applications of this nature and the larger
perspective must be kept in mind, balancing the interests of justice
and those of the rival parties. It is a settled principle of law that when
valuable immovable property rights are involved, the Court should
ordinarily afford a hearing to both parties rather than taking a
decision by hearing just one side. The Court below therefore ought
not to have brushed aside the ostensibly adequate reason put forth by
the petitioner/defendant while seeking such relief in the present case.
The Civil Revision Petition is accordingly allowed. The order
under revision is set aside and the delay on the part of the petitioner/
defendant, in filing the application to set aside the ex parte decree
dated 14.01.2014 in O.S.No.555 of 2013, is condoned. I.A.No.1156
of 2014 in O.S.No.555 of 2013 is allowed and the said ex parte decree
is also set aside. O.S.No.555 of 2013 is restored to the file of the
learned II Additional Senior Civil Judge, Ranga Reddy District at
L.B.Nagar, who shall endeavour to expeditiously try and adjudicate
the suit on merits and in accordance with law.
Pending miscellaneous petitions, if any, shall stand closed. No
order as to costs.
______________________
SANJAY KUMAR, J
11th APRIL, 2017
CIVIL REVISION PETITION NO.911 OF 2017
11-04-2017
P.Buchanna .. Petitioner
B.Yadagiri.. Respondent
Counsel for petitioner: Sri K.Sreenivas
Counsel for respondent: --
<Gist:
>Head Note:
? CASES REFERRED:
1. 2007 (6) ALD 819 = 2008 (1) ALT 475
2. 2002 (6) ALD 473 = 2002 (5) ALT 766
3. 1988 (1) ALT 783
4. 2005 (1) ALT 805
THE HONBLE SRI JUSTICE SANJAY KUMAR
CIVIL REVISION PETITION NO.911 OF 2017
O R D E R
This Revision Petition under Section115 CPC arises out of the
order dated 07.11.2016 of the learned II Additional Senior Civil
Judge, Ranga Reddy District at L.B.Nagar, in I.A.No.1156 of 2014 in
O.S.No.555 of 2013. The said suit was filed by the respondent herein
for specific performance of the alleged agreement of sale dated
13.10.2012 and was decreed ex parte on 01.04.2014. The petitioner
herein, the defendant in the suit, filed I.A.No.1156 of 2013 therein
under Order 9 Rule 13 CPC to set aside the said ex parte decree by
condoning the delay of 189 days in applying for the same. By the
order under revision, the Court below dismissed the said I.A.
Conventional means of service having failed, substituted service
of notice was effected upon the respondent/plaintiff by publication
thereof in Eenadu Telugu Daily newspaper, L.B.Nagar Edition. The
respondent/plaintiff however did not choose to enter his appearance
before this Court either in person or through counsel.
Perusal of the order under revision reflects that the Court below
dismissed the I.A mainly on the ground that the petitioner/
defendant had failed to file separate applications, one under Section 5
of the Limitation Act, 1963, seeking condonation of delay, and the
other under Order 9 Rule 13 CPC to set aside the ex parte decree.
The Court below further found that sufficient grounds had not been
shown by the petitioner/defendant to set aside the ex parte decree.
The issue that falls for consideration presently is whether one
single application could have been filed by the petitioner/defendant
for condonation of the delay and also to set aside the ex parte decree.
At the outset, it may be noted that Rule 55 of the Civil Rules of
Practice and Circular Orders, 1980 (for brevity, the Rules of 1980),
provides that separate applications must be filed for each distinct
relief prayed for, but goes on to state that the same would not be
necessary if the reliefs sought are consequential.
Reliance was placed by the Court below on S.SEKHAR BABU
V/s. Y.RAMAKRISHNA REDDY in support of its conclusion that two
separate applications had to be filed for the reliefs sought. Perusal of
S.SEKHAR BABU1 reveals that the earlier decision of this Court in
M.NARASIMHA REDDY V/s. BEGARI SAMUEL , which held to the
contrary, was distinguished on facts. However, the basis for the ratio
in M.NARASIMHA REDDY2, to the effect that two such separate
applications need not be filed, was the earlier decision of a Division
Bench of this Court in M.A.QADER V/s. MD.AZMAT ALI . Therein, it
was held that where the grounds for condonation of delay and for
setting aside an ex parte decree were the same, it would not be
necessary to file a separate application for condonation of delay. The
Division Bench observed that the power to do so vests in the Court
and if sufficient material is placed before the Court, wherefrom the
required satisfaction can be gleaned, the Court can admit the set
aside petition even after the period of limitation. The Division Bench
further pointed out that Section 5 of the Limitation Act, 1963, does
not in terms say that a separate application should be filed.
Despite this edict being culled out in M.NARASIMHA REDDY2,
the learned Judge who decided S.SEKHAR BABU1 distinguished
between the cases on the short ground that the defendant in
M.NARASIMHA REDDY2 was not served with summons unlike the
defendant in S.SEKHAR BABU1 and therefore, filing of a condone
delay petition was held to be not even necessary in the earlier case.
Significantly, the learned Judge also failed to take note of KAVALI
NARAYANA V/s. KAVALI CHENNAMMA , wherein another learned
Judge affirmed and followed the principle laid down in
M.NARASIMHA REDDY2. The learned Judge observed therein that as
per Rule 55 of the Rules of 1980, filing of individual applications for
separate reliefs is not a universal principle and as regards
applications under Order 9 Rule 13 CPC, condonation of delay,
whenever such applications are filed beyond the stipulated period of
limitation, is interconnected with the main relief, viz., setting aside of
the ex parte decree. The learned Judge further observed that in such
cases, the grounds for both reliefs would be the same and the two
reliefs are so interconnected with each other that one cannot exist in
the absence of the other. The learned Judge therefore concluded that
such reliefs can be said to squarely fall within the category of
consequential reliefs, which are exempted from the requirement of
Rule 55 of the Rules of 1980.
The aforestated case-law demonstrates that the learned Judges,
who individually decided S.SEKHAR BABU1, on the one hand, and
M.NARASIMHA REDDY2 and KAVALI NARAYANA4, on the other,
disagreed on the issue. However, it is not necessary to refer the matter
to a Division Bench for consideration on this contentious issue as
there is already an authoritative pronouncement of a Division Bench
on this aspect. In M.A.QADER3, a Division Bench of this Court
categorically held that where the grounds for seeking both such
reliefs are the same, it would not be necessary that a separate
application be filed for condonation of the delay. It was also pointed
out that Section 5 of the Limitation Act, 1963, does not stipulate
filing of a separate application there under. Reference was made to the
power vesting in the Court, if sufficient material is placed before it, to
arrive at the required satisfaction that the delay could be condoned so
as to admit the petition for setting aside an ex parte decree even after
the period of limitation. Further, applicability of the exemption under
Rule 55 of the Rules of 1980, when the consequential relief of setting
aside an ex parte decree is sought by condoning the delay in applying
for the same, was lucidly dealt with in KAVALI NARAYANA4.
This being the legal position, the Court below erred in applying
the law laid down in S.SEKHAR BABU1 overlooking the binding
Division Bench decision in M.A.QADER3, which held to the contrary.
As regards the finding of the Court below that sufficient
grounds were not established for setting aside the ex parte decree in
the present case, the affidavit filed in support of the I.A. reflects that
the same reason was cited by the petitioner/defendant to explain the
delay on his part and also for setting aside the ex parte decree. He
claimed that he had failed to take necessary steps in this regard
owing to old age and age-related ailments. The petitioner/defendant
is a senior citizen aged over 66 years. That being so, the Court below
ought to have been more liberal in its approach and should have also
considered the fact that landed property rights were at stake in the
suit. The Court below should therefore have afforded an opportunity
to the petitioner/defendant to put forth his case. Trite to state,
Courts are not expected to adopt a hidebound and pedantic approach
while dealing with applications of this nature and the larger
perspective must be kept in mind, balancing the interests of justice
and those of the rival parties. It is a settled principle of law that when
valuable immovable property rights are involved, the Court should
ordinarily afford a hearing to both parties rather than taking a
decision by hearing just one side. The Court below therefore ought
not to have brushed aside the ostensibly adequate reason put forth by
the petitioner/defendant while seeking such relief in the present case.
The Civil Revision Petition is accordingly allowed. The order
under revision is set aside and the delay on the part of the petitioner/
defendant, in filing the application to set aside the ex parte decree
dated 14.01.2014 in O.S.No.555 of 2013, is condoned. I.A.No.1156
of 2014 in O.S.No.555 of 2013 is allowed and the said ex parte decree
is also set aside. O.S.No.555 of 2013 is restored to the file of the
learned II Additional Senior Civil Judge, Ranga Reddy District at
L.B.Nagar, who shall endeavour to expeditiously try and adjudicate
the suit on merits and in accordance with law.
Pending miscellaneous petitions, if any, shall stand closed. No
order as to costs.
______________________
SANJAY KUMAR, J
11th APRIL, 2017
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