Maddireddy Janardhan vs Naseem Khatun

This revision is directed against the order dated 8.02.2021 passed in I.A.No.496 of 2018 in O.S.No.97 of 2017 on the file of the learned Principal Senior Civil Judge, Mancherial, whereby the application filed by the petitioner-Defendant No.17 under Section 7 of the Limitation Act to condone the delay of 121 days in filing the petition to set aside the ex parte decree dated 09.04.2018 is dismissed.

The petitioner herein is Defendant No.17 in the suit. Initially, the suit O.S.No.97 of 2017 is filed for injunction and later it is converted into suit for declaration of title and perpetual injunction. The plaintiffs would submit that their late father is the absolute owner and possessor of the land admeasuring Ac.5.25 guntas in Sy.No.76/D bearing Khasra No.105 situated at Naspur Grampanchayath, Mancherial Mandal, Adilabad District, and he purchased the same under registered Sale Deed dated 24.08.1974 bearing Document No.926 of 1974 from Syed Bin Omer. The name of the plaintiffs’ father was also mutated in the revenue records and filed pahanies in support of their contention.

Defendant Nos.1 to 3, 6 to 13, 16, 18, 19 and 24 to 29 were set ex parte. The suit against Defendant Nos.20 to 23 and 30 was dismissed as withdrawn. It was reported that Defendant No.5 died on 22.06.2012 and hence, the case against him stands abated. Written statement was filed by Defendant No.4. Defendant Nos.14 and 17 filed their written statement separately. In their written statement they stated that they are the owners and possessors of the land bearing Sy.No.76 measuring Ac.0.39 guntas each, total Ac.3.36 guntas in one compact and they purchased the same from pattedar Raghupathi Redddy and mutation was also effected in their favour. Defendant No.15 adopted the written statement filed by Defendant Nos.14 and 17. Another written statement was also filed by Defendant No.23 and so also Defendant No.30. When the suit is converted into declaration of title after the amendment of the plaint, Defendant No.14 filed his additional written statement adopted by Defendant Nos.4, 15 and 17.

P.Ws.1 to 3 were examined. Exs.A1 to A25 were marked on behalf of the plaintiffs and they were not cross-examined by the defendants and no evidence was adduced on behalf of the defendants. The suit was decreed in favour of the plaintiffs.

I.A.No.496 of 2018 is filed by Defendant No.17. In the affidavit filed along with the petition he would submit that he engaged the counsel Sri V.Bhakta Vatchala to represent on his behalf and he is in touch with his counsel and asking when his presence is required to appear before the Court or to file written statement, his counsel informed that in case of any requirement he will call him and that the counsel neither called him nor filed any written statement. On 15.07.2018 some of the plaintiffs came over to his land and stated that they got decree and also shown the Xerox copy of it dated 09.04.2018. Then he enquired in the office and came to know that his counsel filed adoption memo adopting the written statement filed by Defendant No.4 and even the written statement did not show about his grievance or about his claim and he came to know about the ex parte decree only on 15.07.2018 and there is a delay in filing the application. He would also assert that he is a senior citizen aged 60 years and his absence is only due to the facts stated above and that the suit is filed by the plaintiffs in respect of the vast immovable properties basing on forged documents in collusion with other defendants and if the delay is not condoned, he will be put to irreparable loss. Therefore, requested the Court to condone the delay in filing the petition to set aside the ex parte decree from 08.05.2018 to 29.08.2018.

In a counter filed by the plaintiffs, they stated that the very application itself is not maintainable. The petitioner engaged Sri V.Bhaktha Vatchala, Advocate, and he made his appearance along with Defendant Nos.4, 14 and 15 and written statement was also filed and they have also filed their verified written statement and verified counter in injunction petition on 09.08.2012 through their counsel. Defendant No.14 filed additional written statement on 27.03.2018 and adoption memo was filed by Defendant Nos.4, 15 and the petitioner herein adopting the written statement of Defendant No.14 on the same day only after verifying the said written statement. The counsel for the petitioner represented the case throughout from the beginning to end and on 22.11.2013 and the learned counsel also filed counter in I.A.No.603 of 2013 and as such the argument of Defendant No.17 that he has not filed written statement is incorrect. Moreover, the judgment and decree passed by the Court dated 09.04.2018 is not ex parte judgment and as such the application filed under Order 9 Rule 13 CPC is not maintainable. The number of days delay is not explained properly and the Advocate cannot be blamed and it is the duty of the party to know the day to day proceedings and if at all he has any grievance, he can file complaint against the counsel, but not this petition before the Court and that they failed to make Defendant No.26 as party to the petition. If at all the present defendant is having any grievance, he has to file an appeal, but not this vexatious petition, and thus requested the Court to dismiss the same.

The trial Court after considering the arguments of both the counsel and the proposition of law laid down therein dismissed the application by observing that the decree passed is not an ex parte decree. The trial Court further observed that having engaged an Advocate, it is the duty of the party to approach his counsel and pursue the matter and his argument that the counsel did not inform him is not tenable. The petitioner herein signed on the written statement on 09.08.2012 and he has not even terminated the vakalat of his counsel and as such the trial Court observed that the plea of the petitioner cannot be accepted.

Heard the learned counsel appearing for the petitioner and the learned counsel appearing for respondents. 9. Learned counsel for the petitioner would contend that the decree was passed basing on the plaintiffs’ evidence and without appearance of the defendants and thus it is an ex parte decree, and therefore, the petitioner herein rightly filed an application under Order 9 Rule 13 CPC. He would also assert that initially the suit was filed before the Junior Civil Judge seeking injunction and later the plaint was amended and the relief of declaration of title was sought for. Learned counsel would also contend that the decree was passed basing on the ‘no objection’ given by one of the defendants and the same was extended to the petitioner herein without any knowledge or instructions and the petitioner herein has not given any consent to his Advocate and it is a settled law of proposition that waiver of property right shall require a written consent and also record presence of such party by the Courts and as such the decree was passed without following the procedure envisaged under Order 8 Rule 9 CPC and a fair opportunity is to be given to him. Learned counsel also assert that when the suit filed for injunction is converted into a comprehensive suit for declaration of title, refusal to give an opportunity to the party is unsustainable. Requirement of filing of additional written statement is due to the amended plaint as change of jurisdiction and new pleadings are set in the issue and as such, the memo for adoption is illegal. Learned counsel would also submit that Order 8 Rule 9 deals with subsequent pleadings and it does not impose any limitation on the power of the Court to allow the parties to file subsequent pleadings, but the trial Court erroneously observed that original written statement dated 09.08.2012 was signed and it was not disputed by the petitioner herein and vaklat is not terminated and accordingly dismissed the delay condonation petition. He would also argue that the order of the trial Court is illegal and it committed serious irregularity in accepting the adoption memo dated 27.03.2019 to adopt the additional written statement of Defendant No.14 for the petitioner and Defendant Nos.4, 15 and 17 stating that they have been excluded by the plaintiffs from the suit land by changing the boundaries of the suit and thus, they have no objection, but this amount to fraud committed on the Court, which is impermissible and therefore, requested the Court to set aside the order of the trial Court.

Learned counsel appearing for the petitioner also furnished chronology of events and requested the Court for de novo enquiry as the suit is initially filed for injunction and later converted into a suit for declaration of title. On 09.08.2012 the petitioner filed his written statement along with others before the Junior Civil Judge’s Court but later the plaint was returned to be presented before the Principal Senior Civil Judge, Mancherial. The plaintiffs filed I.A.No.167 of 2018 for amendment of the plaint and also filed the fresh amended copy of the plaint on 06.03.2018. The learned Principal Senior Civil Judge continued the proceedings from the stage where the plaint was returned. The plaintiffs also filed I.A.No.211 of 2018 for appointment of an Advocate-Commissioner and it was ordered on 12.03.2018 and a report dated 27.03.2018 was filed. Additional written statement of Defendant No.14 was also filed on the same day and the adoption memo for Defendant Nos.4, 15 and 17 was filed by the same counsel.

In UDAY SHANKAR TRIYAR V/s. RAM KALEWAR PRASAD SINGH (2006) 1 SCC 75, the Hon’ble Apex Court held as follows:

‘The object of courts is to decide the rights of parties and not to punish them for mistakes which they make in the conduct of their cases by deciding otherwise than in accordance with their rights...Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy.’

Learned counsel for the petitioner also relied upon a case law in MOHD. MUSTAFA SHAREEF V/s. MASOOM ALI MOHALLA COMMITTEE, WARANGAL 2011 (4) ALD 614, this Court held as follows:

‘When a plaint is returned for presentation to proper Court under Order 7 Rule 10 CPC, the plaint alone is returned and as such, the Court to which the plaint is later on presented will have to commence the proceedings on such plaint afresh. The plaint so represented is not a continuation of the plaint presented in the former Court, whether for the purpose of limitation or for Court fees and in all respects, the plaint so presented in the proper Court is a fresh presentation of plaint requiring all proceedings thereafter to be taken up de novo. On the contrary, in the case of transfer of suits the entire suit up to the stage at which it was tried by the former Court is transferred to the transferee Court and it is left to the discretion of the transferee Court, as provided under Section 24(2) CPC either to re-try the suit or proceeded from the point at which it was transferred or withdrawn. It may be that in a particular case, while ordering transfer, a specific direction to continue from a particular stage may be given.’

In the additional written statement filed by Defendant No.14 he stated as follows:

‘It is submitted that the land of defendant no.4, 14, 15 and 17 are excluded by the plaintiffs from the suit land by changing the boundaries of the suit land and extent, and hence these defendants got no right over the suit land within the given schedule boundaries, and they have no objection over the suit land of the plaintiffs.’

Adoption memo is filed on behalf of Defendant Nos.4, 15 and 17 adopting the additional written statement of Defendant No.4. Learned counsel for the petitioner submitted that the said adoption memo does not bear the signature of the party but it is signed by his counsel. Even in the judgment it was observed that the written statement filed by Defendant Nos.14 and 17 they are the owners and possessors of the land bearing Sy.No.76 measuring Ac.0.39 guntas each total Ac.3.36 guntas in one compact. In fact, their counsel Sri V.Bhakta Vatchala filed vakalat for Defendant Nos.4, 14, 15 and 17 and it clearly shows that the petitioner is having land in an extent of Ac.0.39 guntas in Sy.No.76 in his favour. In fact, the plaintiffs filed suit against 31 defendants and it clearly shows that the extent of the land in favour of the petitioner herein is meagre. The petitioner herein engaged counsel and he filed written statement and also filed additional written statement on behalf of Defendant No.4 and filed adoption memo in favour of others including the petitioner herein. He also filed counter in the application filed for appointment of Advocate-Commissioner as well as in the temporary injunction application and thus, the counsel was on record all through and represented the case properly on behalf of the petitioner herein. The petitioner herein simply stated that when he contacted his counsel, he stated that he will inform him whenever it is required, but the advocate never contacted and called him to Court for filing written statement and it was filed without his knowledge. When once the petitioner engaged his counsel, it is for the counsel to represent the matter properly by duly filing the written statement and contest the matter throughout. The petitioner herein failed to meet his counsel during the pendency of the proceedings and kept quiet throughout the pendency of the suit and only after the disposal of the suit came up with the present application by stating that the adoption memo is not filed at his instance.

Considering the extent of the land in his favour and his negligence during the pendency of the proceedings and other relevant factors as discussed above, this Court finds that there is no infirmity in the order of the trial Court and it needs no interference.

In the result, the Civil Revision Petition is dismissed confirming the order under challenge.

Miscellaneous Petitions, if any, pending in this revision shall also dismissed in the light of this final order.