Telangana High Court
Mir Mohsin Mohiuddin All Khan vs Mohd. Jani, on 29 March, 2022
Author: Chillakur Sumalatha
Bench: Chillakur Sumalatha
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
CIVIL REVISION PETITION No.4038 of 2017
ORDER:
Challenging the order of the Court of III Additional Chief Judge, City Civil Court, Hyderabad in I.A.No.2359 of 2015 in O.S. No.387 of 2011 dated 06.01.2017, the present Civil Revision Petition is filed.
2. I.A.No. 2359 of 2015 is an Interlocutory Application filed by the revision petitioner herein who is the defendant to the suit in O.S.No.387 of 2011 seeking to condone the delay of 1246 days in filing an application to set aside the exparte decree that was passed against him. The said application was filed under Section 5 of Limitation Act. The request to condone the delay was negatived by the Court and aggrieved by the said finding, the revision petitioner is before this Court.
3. Heard the submission of learned counsel for the revision petitioner. Though Sri Mohd. Nasrulla Khan, 2 Dr.CSL, J CRP No.4038 of 2017 Advocate is on record representing the respondent, yet, the learned counsel failed to make his appearance and submit his contention in spite of granting ample opportunities. Having regard to the factual scenario, as narrated above, the point that emerges for consideration is;
Whether there exists any justifiable grounds to exercise the revision jurisdiction of the this Court and to set aside the order of the Court of III Additional Chief Judge, City Civil Court, Hyderabad in I.A.No.2359 of 2015 in O.S.No. 387 of 2011 dated 06.01.2017, that stood pending on the file of the said Court as prayed for .
4. The learned counsel for the petitioner submitted that the respondent filed a suit for specific performance of agreement of sale and in the said suit, summons were not served upon the defendant i.e., the revision petitioner herein, but with a notion that the revision petitioner/defendant though received summons, failed to pursue the matter, the trial Court decreed the suit exparte. The learned counsel contended that indeed summons were not served upon the revision petitioner/defendant and at a 3 Dr.CSL, J CRP No.4038 of 2017 belated stage, he came to know that an exparte decree was passed against him and immediately he filed an application to set aside the said exparte decree and also moved an application under Section 5 of Limitation Act to condone the delay in moving the said application for setting aside the exparte decree, but the Court with an observation that no sufficient cause was shown to condone the inordinate delay, dismissed the application and aggrieved by the same the revision petitioner is before this Court.
5. Learned counsel submitted that the respondent/plaintiff managed the postal and all concern authorities and got exparte decree passed and in case the said decree is not set aside, the revision petitioner/defendant would be put to irreparable loss and hardship. The learned counsel further submitted that the revision petitioner/defendant never engaged Sri S.W. Hydri, Advocate to appear on his behalf and the revision petitioner does not know on what basis the said counsel filed vakalat and made his appearance representing the 4 Dr.CSL, J CRP No.4038 of 2017 revision petitioner. Thus, the things were managed and exparte decree was got passed.
6. The learned counsel during the course of his submission brought to the notice of this Court certain factual aspects in support of his submission. The learned counsel submitted that the address mentioned at different points by the respondent/plaintiff itself demonstrates the fraud played for getting an exparte decree. A perusal of the material available on record reveals the justification in the said submission. The basis in the suit is the Agreement of Sale dated 06.02.2009. A perusal of the said Agreement of Sale reveals that the said agreement is between the revision petitioner herein and the respondent who are defendant and plaintiff to the suit respectively. The address of the revision petitioner/defendant as mentioned in the said agreement of sale is "R/o. Flat No.403, Al Hamra Residency, Asifnagar, Hyderabad". In the receipt dated 06.02.2009, the same address is mentioned. However, in the plaint in O.S.No.387 of 2011, the respondent/plaintiff 5 Dr.CSL, J CRP No.4038 of 2017 mentioned the address of the revision petitioner/defendant as "H.No.11-4-625, Pent House, Mustafa Moghal Apartments, A.C, Guards, Hyderabad". In the legal notice dated 31-05-2011 also the same address i.e., R/o.H.No.11- 4-625, Pent House, Mustafa Moghal Apartments, A.C, Guards, Hyderabad is mentioned. However, surprisingly in the postal acknowledgement card, the address is mentioned as "12-1-881/C, KBN Residency, Asifnagar, Hyderabad". Apart from these discrepancies, a specific mention is made in the affidavit filed by the revision petitioner herein in IA No.2359 of 2015 which was moved under Section 5 of Limitation Act that the revision petitioner is taking legal steps against the learned Advocate by name S.W. Hydri. There is also a specific mention that when he had not received summons, the question of filing vakalat does not arise.
7. Having regard to the stand taken, this Court is of the view that making the revision petitioner to suffer under an exparte decree passed would be unjustifiable. After all the 6 Dr.CSL, J CRP No.4038 of 2017 purpose of Courts of law is to render substantial justice by giving due opportunity to both parties to exhibit their respective stands. This principle is a cardial principle which at all times is required to be followed. Therefore, this Court considers that the view taken by the Court below unjustifiable and the Court ought to have condoned the delay paving way for the petitioner to agitate. Therefore, this Court considered desirable to allow the revision petition as prayed for.
8. Resultantly, the revision petition is allowed.
9. The Order rendered by the Court of III Additional Chief Judge, City Civil Court, Hyderabad in I.A.No.2359 of 2015 in O.S.No. 387 of 2011 dated 06.01.2017 is set aside. Consequently the delay is condoned.
__________________________________ DR. CHILLAKUR SUMALATHA, J Date: 29.03.2022 Pssk