Whether in view of the explanation under Order IX Rule 13 CPC, there is a bar to entertain application under Order IX Rule 13. - Objection is that the appeal filed was not pressed and the same was dismissed - Held that Not press amounts to withdrawing of appeal and as such lower court rightly condone the delay holding that Or.9, rule 13 is maintainable= Respondent herein filed I.A.No.309/2012 under Section 5 of Limitation Act to condone delay of 850 days in filing petition to set aside ex-parte judgment and decree dated 25-02-2010 and the said petition was opposed by the plaintiff i.e., revision petitioner herein and the trial Court considering the material, overruled the objection of the plaintiff and allowed the application and condoned delay. Or.IX, Rule 13 C.P.C.- Explanation: where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule of setting aside the ex parte decree. According to Advocate for revision petitioner as the appeal is disposed of as not pressed, but not due to reason of withdrawal, it has to be treated that the appeal has been disposed of on the ground other than withdrawn, therefore, the application under Order IX Rule 13 is not maintainable. Held that If it was not pressed on any ground, which prohibits the party from availing any other remedy available under law, then the plaintiff may be correct in objecting, but when the explanation provides that withdrawal of appeal enables party to invoke the provision of Order IX Rule 13 CPC, not pressing appeal would also come under the purview of withdrawal and the trial Court has rightly considered this aspect and I do not find any illegality or wrong exercise of jurisdiction to be interfered by this Court under the revisional powers.

  Whether in view of the explanation under Order IX Rule 13 CPC, there is a bar to entertain application under Order IX Rule 13. - Objection is that the appeal filed was not pressed and the same was dismissed - Held that Not press amounts to withdrawing of appeal and as such lower court rightly condone the delay holding that Or.9, rule 13 is maintainable=

Respondent
herein filed I.A.No.309/2012 under Section 5 of Limitation
Act to condone delay of 850 days in filing petition to set
aside ex-parte judgment and decree dated 25-02-2010 and
the said petition was opposed by the plaintiff i.e., revision
petitioner herein and the trial Court considering the
material, overruled the objection of the plaintiff and
allowed the application and condoned delay.

Or.IX, Rule 13 C.P.C.-
  Explanation: where there has been an appeal
against a decree passed ex parte under this rule, and
the appeal has been disposed of on any ground other
than the ground that the appellant has withdrawn the
appeal, no application shall lie under this rule of setting
aside the ex parte decree.
According to Advocate for revision
petitioner as the appeal is disposed of as not pressed, but
not due to reason of withdrawal, it has to be treated that
the appeal has been disposed of on the ground other than
withdrawn, therefore, the application under Order IX Rule
13 is not maintainable.
Held that
If it was not pressed on any
ground, which prohibits the party from availing any other
remedy available under law, then the plaintiff may be
correct in objecting, but when the explanation provides
that withdrawal of appeal enables party to invoke the
provision of Order IX Rule 13 CPC, not pressing appeal
would also come under the purview of withdrawal and the
trial Court has rightly considered this aspect and I do not
find any illegality or wrong exercise of jurisdiction to be
interfered by this Court under the revisional powers.

http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=12729

THE HON'BLE SRI JUSTICE S. RAVI KUMAR      

CIVIL REVISION PETITION No.463 of 2013  

05-06-2015

S. Davender Reddy Petitioner.
                               

S. Ravinder Reddy ...Respondent.

Counsel for the Petitioner: Sri B. Nalin Kumar

Counsel for Respondents: Sri K. Ashok Reddy

<Gist :

>Head Note:

? Cases referred:

THE HON'BLE SRI JUSTICE S. RAVI KUMAR      

CRP No.463 of 2013

Date:05.06.2015


ORDER:

     This revision is preferred against order dated 12-12-
2012 in I.A.No.309/2012 in O.S.No.1271/2007 on the file
of XXII Junior Civil Judge, City Civil Court, Hyderabad.

2.      Revision petitioner herein is plaintiff and respondent
herein is defendant in O.S.No.1271/2007.  Respondent
herein filed I.A.No.309/2012 under Section 5 of Limitation
Act to condone delay of 850 days in filing petition to set
aside ex-parte judgment and decree dated 25-02-2010 and
the said petition was opposed by the plaintiff i.e., revision
petitioner herein and the trial Court considering the
material, overruled the objection of the plaintiff and
allowed the application and condoned delay.  Aggrieved by
which, plaintiff preferred present revision.

3.      Heard both sides.

4.      Advocate for revision petitioner submitted that
respondent herein preferred A.S.No.370/2010 challenging
ex-parte decree and judgment dated 25-02-2010, but
subsequently, he has not pressed the said appeal,
therefore, he cannot invoke the provisions of Order IX,
Rule 13 CPC as it is a bar under explanation given to the
said provision. He submitted that the trial Court, without
considering the said objection, allowed the petition filed
under Section 5 of the Limitation Act and the order of the
trial Court is liable to be set aside.  On the other hand,
Advocate for respondent/defendant submitted that the trial
Court rightly negatived the objection of the plaintiff,
because the appeal was not decided on merits and it was
dismissed as not pressed, which will amount to
withdrawal, therefore, trial Court has not committed any
error.

5.      Now the point that would arise for my consideration
in this revision is whether orders of the Courts below are
legal, proper and correct?

6.      Point:- Revision Petitioner herein filed
O.S.No.1271/2007 for eviction and that the respondent
herein filed written statement disputing the relationship of
landlord and tenant contending that there was an
agreement between them for sale of suit schedule property
for a consideration of Rs.11,00,000/- and that the
defendant paid Rs.5,00,000/- as advance and as the
revision petitioner herein refused to register the property
by receiving remaining sale consideration, he filed
O.S.No.683/2008 for specific performance of agreement of
sale.  It is the contention of the respondent herein that his
counsel underwent open heart surgery and due to his
ailment, the witnesses of plaintiff was not cross-examined
and that an examined ex-parte decree was passed and on
the instructions of his previous counsel, he filed
A.S.No.370/2010 challenging the said ex-parte judgment,
but on the advise of present counsel, he has not pressed
that appeal and filed a petition under Order IX Rule 13
CPC to set aside ex-parte decree with delay condonation
petition.

7.      Now the main objection of the plaintiff i.e, revision
petitioner herein is that in view of the explanation under
Order IX Rule 13 CPC, there is a bar to entertain
application under Order IX Rule 13. For better
appreciation, it is necessary to read the said provision
which is extracted below:-
     Setting aside decree ex parte against
defendant.
      In any case in which a decree is passed ex parte
against a defendant, he may apply to the court by
which the decree was passed for an Order to set it
aside; and if he satisfies the court that the summons
was not duly served, or that he was prevented by any
sufficient cause from appearing when the suit was
called on for hearing, the court shall make an Order
setting aside the decree as against him upon such
terms as to costs, payment into court or otherwise as it
thinks fit, and shall appoint a day for proceeding with
the suit:
      PROVIDED that where the decree is of such a
nature that it cannot be set aside as against such
defendant only it may be sent aside as against all or
any of the other defendant also:
      PROVIDED FURTHER that no court shall set
aside a decree passed ex parte merely on the ground
that there has been an irregularity in the service of
summons, if it is satisfied that the defendant had notice
of the date of hearing and had sufficient time to appear
and answer the plaintiffs claim.
      Explanation: where there has been an appeal
against a decree passed ex parte under this rule, and
the appeal has been disposed of on any ground other
than the ground that the appellant has withdrawn the
appeal, no application shall lie under this rule of setting
aside the ex parte decree.

8.      A plain reading of the above provision makes it clear
that if the appeal preferred challenging the ex-parte
judgment is disposed on any ground other than the ground
that it was withdrawn an application under Order IX Rule
13 is not maintainable.  According to Advocate for revision
petitioner as the appeal is disposed of as not pressed, but
not due to reason of withdrawal, it has to be treated that
the appeal has been disposed of on the ground other than
withdrawn, therefore, the application under Order IX Rule
13 is not maintainable.  The very same objection was
raised before the trial Judge and some rulings were also
cited before the trial Judge.  Advocate for revision
petitioner mainly focused on the decision of Honble
Supreme Court in Rani Choudhury vs. Lt.-Col.Suraj Jit
Choudhury , in support of his argument, as to the
maintainability of application under Order IX Rule 13 CPC.
In that decision, the appeal was filed with a delay
condonation petition challenging the ex-parte decree and
that delay condonation petition was dismissed on merits,
thereafter, an application under Order IX Rule 13 CPC was
filed by the very same party and the High Court took a view
that as the appeal was not decided on merits held that
application under Order IX Rule 13 CPC is maintainable,
which was not accepted by the Honble Supreme Court.
But here in this case, the appeal was not decided on
merits, and it was dismissed as not pressed.  Withdrawing
the appeal or not pressing the appeal, in my view is one
and the same, because in both the cases, there will be no
order on merits.  It is not known for what reason the
appeal was not pressed.  If it was not pressed on any
ground, which prohibits the party from availing any other
remedy available under law, then the plaintiff may be
correct in objecting, but when the explanation provides
that withdrawal of appeal enables party to invoke the
provision of Order IX Rule 13 CPC, not pressing appeal
would also come under the purview of withdrawal and the
trial Court has rightly considered this aspect and I do not
find any illegality or wrong exercise of jurisdiction to be
interfered by this Court under the revisional powers.

9.      For these reasons, I am of the considered view that
the revision is devoid of merits, therefore, liable to be
dismissed.

10.     Accordingly, revision is dismissed.  No costs.


11.     As a sequel, miscellaneous petitions, if any, pending
in this Civil Revision Petition, shall stand dismissed.

__________________________  
JUSTICE S. RAVI KUMAR    
Date:05.06.2015