Telangana High Court
M/S. Vijetha Home Partnership Firm vs M. Prabhakar Rao on 25 April, 2025
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
1
cma_203_2024
NBK, J
THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
CIVIL MISCELLANEOUS APPEAL No.203 of 2024
JUDGMENT:
This Appeal is filed against the Order dated 28.02.2024 passed by the II Additional Chief Judge, City Court, Hyderabad (for short, the trial Court), in I.A.No.1547 of 2019 in O.S.No.470 of 2013. By the order impugned, the trial Court dismissed the Application filed by the appellants/defendants under Order 9 Rule 7 of Code of Civil Procedure, to set aside the ex parte order dated 06.02.2015. For the sake of convenience, the parties will be referred to as they were arrayed before the trial Court.
2. Heard Mr. G. Shashidhar Reddy, learned counsel for the appellants/defendants; and Mr. T.S. Murthy, learned counsel for the respondent/plaintiff. Perused the record.
3. Brief facts of the case are that the defendants executed a registered Agreement of Sale vide Document No.2968/2008 dated 03.11.2008 for sale of a Flat of 1793 Square Feet in Vijetha Fortune, Narayanaguda, Hyderabad, by receiving a Sale consideration of Rs.39,00,000/- out of the total sale consideration Rs.40,00,000/-, and as per Clause No.3 and 4 of the Agreement of Sale, the defendants are required to deliver the possession of the suit schedule property after completion of construction. However, as the defendants failed to honour the Agreement of Sale, the plaintiff filed the Suit before the trial Court on 27.06.2013. Notices were sent on the address of the defendants but to 2 cma_203_2024 NBK, J no avail, and a paper publication was issued on 26.09.2014. The trial Court had extended the period for filing the Written Statement till 02.02.2015 and thereafter the defendants were set ex parte on 06.02.2015, and proceeded with the evidence of plaintiff, and after making of documents and final arguments, the trial Court reserved the matter for judgment on 02.12.2019. While so, the defendants filed an Application under Order 9 Rule 7 of CPC stating that the plaintiff filed a case against them in C.C.No.168 of 2012 on the file of IX Special Magistrate, Hyderabad, under Section 138 of the Negotiable Instruments Act, and the documents they sought to rely on could not be marked in the said C.C.No.168 of 2012 due to opposition by the plaintiff and finally they got marked the documentary evidence, and they could not obtain certified copies of the same, but now they got the copies and got prepared their written statement and therefore seek to set aside the ex parte order dated 06.02.2015. The trial Court dismissed the Application; hence this Appeal.
4. Learned counsel for the appellants/defendants would contend that the defendants filed the Application under Order 9 Rule 7 CPC along with their written statement and certified copies of documents on 02.12.2019; that even after ex parte order dated 06.02.2015, the plaintiff was not ready to lead evidence for about four years and that delay cannot be attributed to the defendants; that the plaintiff filed a criminal case in C.C.No.168 of 2012 with a similar cause of action and the trial went on until 2019; that a tripartite agreement has been reached with the plaintiff settling his claim under the Agreement of Sale thereby cancelling the Agreement of Sale; that the trial Court did not appreciate 3 cma_203_2024 NBK, J the facts pleaded by the defendants with regard to the delay caused, in proper perspective; that the trial Court ought to have given the defendants a fair chance to contest the case and therefore the dismissal of the Application filed under Order 9 Rule 7 CPC is illegal, arbitrary and liable to be set aside.
5. Learned counsel for the respondent/plaintiff, on the contrary, contends that the Suit was filed in the year 2013 and summons were sent on the address of the defendants on 25.10.2013, 27.11.2013, 11.02.2014, and 02.06.2014; that the defendants failed to honour the summons, and a paper publication was issued on 26.09.2014; that the defendants failed to file their written statement even within the enlarged period granted by the trial Court until 02.02.2015; that the plaintiff an appeal in Criminal Appeal No.663 of 2019 before this Court challenging the acquittal judgment in C.C.No.168 of 2012; that the delay of six and a half years caused in coming up with a written statement has not been properly explained; that even after disposal of C.C.No.168 of 2012, the defendants have waited for six months and when the Suit was finally heard and reserved for Judgment, the defendants filed this Application on 02.12.2019 which is the day of pronouncement of judgment; that the defendants have not honoured the Agreement of Sale since 2008 and it is 16 years now that they are still trying to protract the litigation on one pretext or the other. Learned counsel relies on the judgment of the Hon' ble Supreme Court in Arjun Singh v. Mohindra Kumar1, and the judgment of Karnataka High Court in Rabiya Bi Kassim v. Country-
1AIR 1964 SC 993 4 cma_203_2024 NBK, J wide Consumer Financial Service Ltd 2, and contends that once a case has been finally heard and posted for judgment, any application for set aside of ex parteorder is not maintainable.
6. Having considered the respective submissions and perused the record, it may be noted that the plaintiff filed the Suit, O.S.No.470 of 2013, for specific performance of Agreement of Sale dated 03.11.2008 and supplemental agreement dated 11.05.2011, and summons were sent by the trial Court to the defendants on 25.10.2013, 27.11.2013, 11.02.2014, and 02.06.2014 and when there was no response, a paper publication was issued on 26.09.2014. Further, the trial Court has enlarged the period for filing written statement till 02.02.2015 and as no written statement was forthcoming, the impugned order dated 06.02.2015 was passed. Thereafter, the defendants came up with the Application under Order 9 Rule 7 of CPC on 02.12.2019, the day on which the case was posted for judgment. The reasons put forth by the defendants that they were pursuing a criminal case in C.C.No.168 of 2012 before the Court of Special Magistrate and the plaintiff vehemently opposed marking of documents and ultimately they got the documents marked, and they could get the certified copies after disposal of the C.C by the Court of Special Magistrate on 15.04.2019, cannot be countenanced for the reason that nothing prevented the defendants to bring those facts to the knowledge of the trial Court during the period when the time for filing written statement was enlarged till 02.02.2015. Further, the additional delay caused after the disposal of C.C. by the 2 2005 (1) RCR (Civil) 271 5 cma_203_2024 NBK, J Special Magistrate on 15.04.2019 is also not cogently explained by the defendants.
7. The trial Court has further observed in paragraph 6(a) of the impugned order that the petitioners could have obtained certified copies immediately after they are marked and there was no necessity for the defendants to wait until the disposal of the criminal case on 15.04.2019 and that the defendants could have filed their written statement by mentioning these facts within the stipulated time or sought for summoning the documents from criminal Court. The delay from 2013 till 02.12.2019, the day on which the defendants sought to file a written statement with an Application under Order 9 Rule 7 CPC, is undisputably the delay on the part of defendants, and the argument sought to be carved out stating that even after the ex parte order on 06.02.2015, the plaintiff was not ready to lead evidence is entirely misplaced and misconceived argument, and the time occasioned thereafter for evidence of plaintiff cannot absolve the defendants from their duty of filing written statement within the permissible time, if they were diligent in pursuing the case.
8. The fact remains that the Suit was filed in the year 2013, the defendants did not respond to the summons issued by the trial Court and a paper publication had to be issued, the time for filing the written statement was enlarged till 02.02.2015, and it is only on 06.02.2015 when no written statement was forthcoming from the defendants, the trial Court had passed an ex parte order. Further, the reason put forth by the defendants that the criminal case ran until 2019 is unacceptable, as, 6 cma_203_2024 NBK, J even in that scenario, the C.C was disposed of on 15.04.2019 and the delay after the disposal of the criminal case is also not satisfactorily explained, as, admittedly it cannot take about 8 to 10 months to obtain certified copies of documents from the Court.
9. This Court does not see due diligence on the part of the defendants in pursuing the Suit and also in filing an Application under Order 9 Rule 7 CPC after the closure of final arguments on 20.11.2019 and reserving the case for judgment on 02.12.2019. The trial Court rightly appreciated the facts and dismissed the Application filed by the defendants under Order 9 Rule 7 CPC by holding that the reliance placed by the defendants in Valleeswari v. Kamalakannan3is not applicable to the facts of the case, as once the case is heard and reserved for orders, an application to reopen the case under Order 9 Rule 7 of CPCcannot be entertained. In that view of the matter, this Court does not see any illegality or infirmity warranting interference in this appeal.
10. Accordingly, the appeal is dismissed. No costs. Miscellaneous petitions pending, if any, shall stand closed.
________________________________ JUSTICE NAGESH BHEEMAPAKA 22nd April, 2025 ksm 3 AIR 2010 (NOC) 765 MADRAS 7 cma_203_2024 NBK, J THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA CIVIL MISCELLANEOUS APPEAL No.203 of 2024 22ndApril, 2025 ksm