THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Miscellaneous Appeal No.1117 of 2009 (Dated : 26-11-2009) Between: Praveen Kumar, Rahmathnagar, Yousufguda, Hyderabad. …Appellant/petitioner A n d Smt.G.Pushpalatha W/o Sri G.Krishna And others ….Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Miscellaneous Appeal No.1117 of 2009 JUDGMENT: This appeal is directed against the order dated 15.10.2009 passed in I.A.No.179 of 2009 in O.S.No.2188 of 2005 on the file of the X Additional Senior Civil Judge, Fast Track Court, City Civil Court, Hyderabad, whereby and whereunder, the learned Additional Senior Civil Judge dismissed the application filed by the petitioner-2nd defendant under Order IX Rule 13 CPC. 2. The third respondent and the petitioner are defendants 1 and 2 and whereas the respondents 1 and 2 herein are plaintiffs in O.S.No.2188 of 2005. The plaintiffs filed the suit for partition and separate possession of their 2/3rd share in the suit schedule properties. The 1st defendant remained ex parte. The 2nd defendant-Praveen Kumar filed written statement resisting the claim of the plaintiffs. Issues came to be settled and the suit stood posted to 23.6.2009 for commencement of trial. The chief affidavit of Pw-1 was filed and thereafter, the 2nd defendant sought time, and therefore, the suit stood posted to 30.6.2009. On 30.6.2009, Pw-1 remained absent, and the suit stood posted to 9.7.2009 on payment of costs of Rs.100/-. On 9.7.2009, there was no representation and consequently, an ex parte decree came to be passed. 3. The 2nd defendant filed I.A.No.179 of 2009 under Order IX Rule 13 CPC to set aside the ex parte decree dated 9.7.2009. In the affidavit filed in support of the petition, the petitioner-2nd defendant stated that he could not proceed with the cross examination of Pw-1 on 30.6.2009 since his counsel was held up in other Court in the same premises. For better appreciation, I may refer para (3) of the affidavit, which reads as hereunder:- “ I further submit that to my utter surprise on 9.7.2009 this Hon’ble court set me ex parte and passed an ex parte decree for non-representation on my behalf, as my counsel could not represent the matter as he is held up in another court in the same premises. I further submit that I am out of station to attend the funeral and death ceremony of my aunt to Nellore from 24.6.2009 to 10.7.2009 and I could not able to contact my counsel. I further submit that after filing the above fabricated suit, Pw-1 for the first time appeared before this Hon’ble Court on 9.7.2009, but this Hon’ble Court without giving a single chance for cross-examination of PW-1, on the same day ex parte decree was passed, which caused me great mental agony and hardship, without any case of the plaintiffs. I further submit that on 30.6.2009, this Hon’ble Court imposed costs of Rs.100/- on plaintiffs for non appearance of Pw.1 for cross examination, but despite of representation of my counsel on that day, this Hon’ble Court imposed costs of Rs.100/- to defendant No.2 which is not warranted, even today, I am of the impression that the costs was on Pw-1 for non-appearance”. 4. The plaintiffs did not choose to file counter resisting the application of the petitioner-2nd defendant, filed under Order IX Rule 13 CPC read with Section 151 CPC. The learned Senior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, proceeded to dismiss the application, by order dated 15.10.2009. Hence, this appeal. 5. The appellant filed C.M.A.M.P.No.2075 of 2009 seeking stay of all further proceedings including execution of the decree dated 9.7.2009 passed in O.S.No.2188 of 2005. When the C.M.A.M.P.No.2075 of 2009 came up for consideration, with the consent of the learned counsel appearing for the parties, the appeal itself is taken up for final disposal. 6. Heard learned counsel appearing for the appellant and the learned counsel appearing for the respondents 1 and 2. Notice to respondent No.3 is stated to be not necessary, since he remained ex parte in the trial Court. 7. Learned counsel appearing for the appellant-2nd defendant submits that on 23.6.2009, since Pw.1 remained absent, there was no need for the defendant to be present and it is the plaintiff, who had to be present but not the appellant-2nd defendant to be present before the Court. A further submission has been made that on 9.7.2009, the petitioner-2nd defendant could not proceed with the cross examination of Pw-1 since the counsel engaged by him was attending some other Court in the same premises. 8. Learned counsel appearing for the respondents 1 and 2-plaintiffs support the order impugned in this appeal. 9. The fact remains that respondents 1 and 2-plaintiffs did not file counter resisting the application filed by the petitioner-defendant No.2. The petitioner-2nd defendant offered two reasons for not cross-examining Pw-1 on 9.7.2009. Firstly; his counsel was engaged in some other Court in the same premises and secondly; he could not attend the Court due to calamity in his family, i.e., death of his aunt at Nellore. The respondents 1 and 2-plaintiffs did not choose to file counter disputing the death of the aunt of the petitioner- 2nd defendant at Nellore. On 23.6.2009, the case came to be adjourned because of the absence of Pw.1. Since valuable rights of the parties in immovable properties are involved, I deem it appropriate to set aside the ex parte decree passed against the petitioner on 15.10.2009 subject to the petitioner depositing suit costs of Rs.202/- within 15 days and on further condition that he shall proceed with the cross examination of Pw-1 on the date specified by the trial Court in one sitting. 10. Accordingly, this Civil Miscellaneous Appeal is allowed setting aside the order dated 15.10.2009, subject to the following conditions:- (i) Payment of costs of Rs.202/- to the plaintiffs within 15 days (ii) The Appellant-petitioner should complete the cross examination of Pw-1 in one sitting on the date fixed by the trial Court. 11. Subject to above conditions, this Civil Miscellaneous Appeal is allowed. ____________________________ B.SESHASAYANA REDDY, J Dt.26-11-2009 Note:- Issue CC in one week (B/o) RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Miscellaneous Appeal No.1117 of 2009 (Dated : 26-11-2009)