HON’BLE SRI JUSTICE B. SESHASAYANA REDDY CIVIL REVISION PETITION No.2835 of 2010 Date: August 17, 2010 Between: 1. Uppala Narsamma and 2 others. … Petitioners And 1. Uppala Venkanna and 5 others … Respondents * * * HON’BLE SRI JUSTICE B. SESHASAYANA REDDY CIVIL REVISION PETITION No.2835 of 2010 ORDER: This revision is directed against the order dated 29.6.2010 passed in I.A. No.250 of 2010 in O.S. No.15 of 2005 on the file of the Senior Civil Judge, at Suryapet, whereby and whereunder the learned Senior Civil Judge dismissed the application filed by defendants 1, 4 and 6 in O.S. No.15 of 2005 to set aside the ex parte order dated 29.3.2005. 2. The first respondent herein is the plaintiff in the suit. He filed the suit for partition against his mother, brother and sisters. The petitioners herein are stated to be mother and sisters of the plaintiff. The petitioners remained ex parte in the suit and consequently an ex parte order came to be passed on 29.3.2005. 3. The other defendants filed written statement resisting the claim of the plaintiff. D-2 and D-3 filed written statement disputing the claim of the plaintiff. The contesting parties adduced evidence in support of their respective contentions. When the trial came to an end, the petitioners herein filed I.A. No.250 of 2010 to set aside the ex parte order dated 29.3.2005. The first petitioner herein has sworn to the affidavit filed in support of the petition I.A. No.250 of 2010 filed under Order IX Rule 7 read with Section 151 of the Code of Civil Procedure. 4. The relevant portion of the affidavit reads as hereunder: “It is submitted that after receipt of the summons from the Hon’ble Court we have questioned the plaintiff regarding the filing of the suit before the village elders. The plaintiff and defendant Nos.1 to 3 also made believed us that we will get our property as per law and we need not to proceed with the suit. Therefore we were under impression that the matter may be settled out of court at any time or we may get our share as per law through the court. Therefore we have not engaged advocate to proceed with the suit before the Hon’ble Court. Therefore on 29.3.2005 the Hon’ble Court called us and made set ex parte. 5. It is specific case of the petitioners herein that they came to know that the plaintiff has been continuing the proceedings in the suit, about a week prior to their filing petition to set aside the ex parte order. The plaintiff and the contesting defendant did not choose to file counter resisting the application of the petitioners herein. Second respondent alone orally resisted the application in the trial court. The learned Senior Civil Judge proceeded to dismiss the application on the ground that the petitioners have not made out a valid ground to set aside the ex parte order by order dated 29.6.2010. 6. Para 6 of the order impugned in this revision reads as hereunder: “The petitioners are 1, 4 and 6 in the main suit and received the summons. The petitioners failed to appear in the suit and accordingly on 29.3.2005 they were called absent and set ex parte. The reasons mentioned by petitioners that the matter was placed before the elders and they were under impression that matter would be decided out of the Court and as such they have not participated in the suit, is not a plausible reason and clearly appears that having slept over the issue for long and keeping quiet for about 5 years the petitioners have come up with this petition. The contention of the petitioners that they came to know that they being set ex parte and suit can be proceeded about one week back also appears to be not genuine and has been taken only to file this petition at a belated stage. Now the suit is at the stage of ending of the trial as almost all the evidence of defendants’ side let in and it is to be posted for arguments. In this case Hon’ble High Court directed the Court to dispose of the suit by 16th of August, 2010 and taking into consideration the suit for partition and separate possession and other defendants are contesting the suit, the rights of the petitioners would be equally protected along with contesting defendants with regard to the suit schedule properties and as such it is to be held that there are no merits in the petition and petition lacks bona fides and is to be dismissed. Accordingly it is dismissed.” Hence this revision. 7. Notice before admission has been ordered on 20.7.2010. Though notices have been served on respondents 1, 3 to 6, they did not choose to enter appearance either in person or through a counsel. The second respondent-2nd defendant entered appearance through a counsel. 8. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the second respondent/plaintiff. 9. The learned counsel appearing for the petitioners submits that the petitioners were under the impression that plaintiff would get the dispute settled through mediators and instead the plaintiff proceeded with the trial and so also the other contesting defendants. On coming to know the continuation of the proceedings in the suit, a week prior to 15.3.2010 the petitioners filed the application and therefore, there are no laches on the part of the petitioners in filing the petition to set aside the ex parte order. 10. The learned counsel appearing for the second respondent/plaintiff strenuously contends that the petitioners herein and the other defendants are sailing together and the petitioners purposefully filed the application at the fag end of the trial so as to drag on the proceedings. The learned counsel appearing for the second respondent, in support of his submissions, placed reliance on the judgment of Madras High Court in K.R. Chinnathambi Gounder v. Bhanumathy and 4 others[1]. In the cited decision the Madras High Court came to the conclusion after referring to the reasons stated therein that the application filed to show good cause to set aside the ex parte order. The facts in the cited case and the facts in the case on hand are distinctive and therefore the cited case is of help to the 2nd respondent-2nd defendant. 11. As could be seen from the material placed on record, the second respondent herein did not choose to file counter contraverting the averments made in the affidavit filed in support of I.A. No.250 of 2010. Of course, the second respondent-second defendant orally opposed the application filed by the petitioners herein under Order IX Rule 7 read with Section 151 C.P.C. to set aside the ex parte decree. The suit is still pending and the petitioners herein filed written statement along with the petition to set aside ex parte order. 12. The contents of the affidavit filed in support of I.A. No.250 of 2010have been stated supra. The first petitioner herein has specifically stated in the affidavit filed in support of the petition in I.A. No.250 of 2010 that the petitioners came to know of the continuation of the proceedings a week prior to the filing of the petition. Such is the situation, the observation of the trial court that petitioners moved the application at the belated stage to drag on of the proceedings cannot be sustained. Taking into consideration the facts and circumstances, I deem it appropriate to allow the petitioners to participate in the trial subject to certain terms and conditions. 13. Accordingly, the civil revision petition is allowed setting aside the order dated 29.6.2010 passed in I.A. No.250 of 2010 in O.S. No.15 of 2005 on the file of the Senior Civil Judge, at Suryapet, subject to the following terms. (1) The petitioners shall pay Rs.2,000/- (Rupees two thousand only) to the respondents towards costs within two weeks from today; (2) They shall complete evidence on their behalf in one sitting. _____________________________ B. SESHASAYANA REDDY, J Date: August 17, 2010. Note: Issue C.C. in two days. //B.O.// BSB [1] 1998 (2) LW 271