IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIRST DAY OF JUNE TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.1596 of 2009 Between: M/s.Bharat Petroleum Corporation Limited, Cherlapally, Hyderabad rep. by its Territory Manager, Mr.Nikhil Kumar Singh ... PETITIONER AND Smt. Lata Kashikar and others ... RESPONDENTS ORDER: This revision is filed at the instance of the petitioner who is defendant No.1 in O.S.No.2818 of 2004 on the file of the VIII Additional Senior Civil Judge (FTC), City Civil Court, Hyderabad. 2. The petitioner is the tenant of the respondents/ landlords. The suit aforesaid came to be filed seeking recovery of possession from the petitioner as well as for arrears of past and future mesne profits and costs. The said suit was decreed ex parte by the trial Court on 17-12-2008. 3. The petitioner herein has filed the present application I.A.No.30 of 2009 in O.S.No.2818 of 2004 under Section 5 of the Limitation Act along with an application seeking to set aside the exparte decree. The present application I.A.No.30 of 2009 is filed supported by an affidavit of the learned counsel representing for the petitioner before the trial Court seeking condonation of delay of 38 days in filing petition to set aside the ex-parte decree under impugned order dated 23-03-2009. The said application was dismissed by the Court below and aggrieved thereby the present revision is preferred by the petitioner. 4. The landlords – respondents have filed an application seeking vacation of stay being CRPMP No.2103 of 2010 and when the said petition came up for hearing, both the learned counsel agreed to argue the Civil Revision Petition itself. Accordingly, the Civil Revision Petition having been heard is being disposed of. 5. The learned counsel representing the petitioner – tenant contends that the application seeking condonation of delay of 38 days was filed on the ground that the junior counsel who was attending the said suit was posting the said matter from day to day in the diary maintained by the counsel and on the dates noted in the diary the case was being attended to by the counsel for the petitioner before the lower Court. It is stated that on 06-11-2008 on adjournment of various I.As. the suit in question was posted and noted as 21-01-2009. 6. On the said date this case was not shown in the cause list. Enquiry was made and noticed that the suit was actually posted to 21-11-2008 and not 21-01-2009 (as noted in the dairy of the learned counsel representing the petitioner). It also transpired that the petitioner was set exparte on 16-07-2008 and later decreed exarte on 17-12-2008. Ttherefore, the present application has been filed on 22-01-2009 itself supported by the learned counsel representing the petitioner. 7. Learned counsel therefore states that the mistake in noting the correct date was bonafidely explained in the affidavit filed in support of present application and there is no need for the Court below to take a very hyper technical view and reject the said application. 8. The learned counsel representing the respondent on the contrary has vehemently opposed the revision on the ground that even the past conduct regarding the prosecution of the suit by the petitioner shows that at all stages they have attempted to delay and drag on the suit on one pretext or the other. It was pointed out that previously also for non-filing of written statement, they were set exparte and only on an application moved by the petitioner’s counsel they were given opportunity to file the written statement. It is also submitted that the petitioners have defaulted in payment of rents and having driven the landlords to file I.A.No.961 of 2006 invoking Order 15-A of the Code of Civil Procedure and in spite of the order passed in the said I.A. on 23-02-2007 no rents have been deposited by the petitioner. It is contended that on account of the default committed by them in complying with the said orders dated 23-02-2007 the defence of the petitioners is stuck off and in any case they cannot lead any evidence in the suit and as such, no purpose would be served by setting aside the exparte decree. Learned counsel also contended that the conduct of the petitioner- corporation in not acting in fairness was noticed by the Supreme Court in Bharat Petroleum Corporation Limited v. Maddula Ratnavalli and others[1] and the observations of the Supreme Court equally apply to the facts of the present case also. Even in the present case, the petitioner corporation has been negligent not only in prosecuting the suit but have also defaulted in payment of rent in spite of orders passed by the trial Court. 9. Learned counsel also relied on the decision of the Supreme Court in Shiv Shakti Co-operation Housing Society, Nagpur v. Swaraj Developers and others[2] and contends that the present revision petition filed under Section 115 of the Code of Civil Procedure is not maintainable. 10. The points for consideration in this Civil Revision Petition are: 1. Whether this Civil Revision Petition is maintainable under Section 115 of the Code of Civil Procedure ? 2. If so, whether the impugned order of the Court below is sustainable or not in view of the facts shown in the affidavit in support of the present application ? 11. Section 115 of the Code of Civil Procedure was amended in view of the recommendations of the joint committee of the parliament and the said provisions reads as follows: “115.Revision:- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. (2) the High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court. Explanation: In this section, the expression, “any case which has been decided” includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.” 12. The Supreme Court considered the said provisions in the decisions 2nd cited. In the present case I am not inclined to uphold the said objection of the learned counsel for the respondents for two reasons: FIRSTLY: The order impugned if allowed to stand would terminate the suit so far as petitioner is concerned as nothing further would remain for adjudication in the suit. The Civil Revision Petition under Section 115 of the CPC would therefore be maintainable against the impugned order of the nature involved herein. SECONDLY: Though the revision is filed under Section 115 of the CPC a Court fee of Rs.100/- is paid which even otherwise would be sufficient if this revision is to be treated as one under Article 227 of the Constitution of India. Looking at the objection of the learned counsel for the respondent therefore, on either of the grounds it is not sustainable. Point No.1 is accordingly held in favour of the petitioner. 13. So far as point No.2 is concerned the affidavit in support of the present application has been sworned to by the learned counsel for the petitioner before the trial Court. It is categorically mentioned therein that his colleague (junior colleague) was attending the matter on various dates and was entering the next date of hearing in the diary. The mistake appears to have been made in noting the date of the suit as 21-01-2009 instead of 21-11- 2008. Though the posting appear to be with respect to some I.As. filed in the suit the suit actually came to be decreed ex-parte on 17-12-2008 itself. It is very clear that the wrong noting of the dates of hearing in the diary maintained by the learned counsel for the petitioner continued for quite some time and no proper attention has been bestowed either by the junior counsel or by the learned counsel for the petitioner, with a result the petitioners were earlier set exparte on 16-07-2008 itself. Though such mistake in noting the correct date of hearing can occur in a counsel’s office a little more care and caution was required to be exercised by the petitioner as well in following of the case. Be that as it may, the said cause shown by the petitioner and as sworned to by an affidavit by the learned counsel for the petitioner ought to have been given due weight especially as the counter-affidavit of the respondent merely contends that the junior counsel’s affidavit is not filed and the rest of the allegations are with respect to past conduct of the petitioner. It is well settled that past conduct of a party is not relevant for considering the sufficient cause shown with respect to the date on which the exparte decree is passed. 14. On overall facts and circumstances herein, as well as in the interest of substantial justice, I see no reason to uphold the impugned order and reject the explanation of the petitioner. I.A.No.30 of 2009 is therefore, allowed. Since the application to set aside the exparte decree filed along with I.A.No.30 of 2009 is also based upon the self same sufficient cause, with the consent of both the parties said application is also allowed, subject however to the condition that the petitioner shall deposit cost of Rs.3,000/- (Rupees three thousand only) to the credit of the suit or pay the said amount to the learned counsel for the respondent. Learned counsel for the petitioner has today paid the costs to the learned counsel for the respondents. Trial Court shall, therefore, give an opportunity to the petitioner to cross-examine the witnesses examined on behalf of respondent – plaintiff and shall dispose of the suit on merits, in accordance with law preferably within eight (8) weeks from today. 15. Accordingly, the Civil Revision Petition is allowed. There shall be no order as to costs. ____________________________ VILAS V. AFZULPURKAR, J June 01, 2010. PN THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.1596 of 2009 June 01, 2010 [1] (2007) 6 Supreme Court Cases 81 [2] (2003) 6 Supreme Court Cases 659