THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA CIVIL REVISION PETITION NO.2928 OF 2009 ORDER: 1 This revision is directed against the order dated 04.06.2009 made in I.A.No.1076 of 2008 in O.S.No.185 of 2005 on the file of the court of the Senior Civil Judge, Mahaboobnagar whereby the petition filed under section 5 of the Limitation Act to condone the delay of 384 days in filing an application under Order IX Rule 13 C.P.C. to set aside the ex parte decree dated 25.06.2007 passed in the said suit was dismissed. 2 Brief facts are that the Respondents 1 to 5 herein instituted the said suit against Respondents 6 and 7 and the Petitioners herein for partition of the plaint schedule properties and to put them in possession of their respective shares. According to Respondents 1 to 5 the properties owned by the 6th Respondent are ancestral properties and that their father i.e. 6th Respondent is selling away the ancestral properties without their knowledge and in that way he sold some properties to the 7th Respondent herein who in turn entered into an agreement of sale with the Petitioners herein in respect of the said properties and thus the 6th Respondent is causing loss to the interest of the family and hence it necessitated them to file the said suit for partition. In the said suit notices were sent to all the defendants i.e. Respondents 6 and 7 and the Petitioners 1 to 3, but, however, as the Petitioners herein have not responded to the said notice, they were set ex parte on 19.06.2007. Thereafter the trial court proceeded with the trial of the suit and after recording the evidence of Respondents 1 to 5, passed a preliminary decree on 25.06.2007 as Respondents 6 and 7 have not contested the said suit. After passing of the said preliminary decree, as stated supra, the Petitioners filed an application under Order IX Rule 13 CPC seeking to set aside the said ex parte decree dated 25.06.2007 and in that process as there was delay of 384 days they filed the present application under section 5 of the Limitation Act, but the same was dismissed. 3 Heard both sides. 4 It is mainly contended by the learned counsel for the petitioners Mr. Vijay Kumar Heroor that the suit summons were never served on the Petitioners and it is only when a suit for perpetual injunction was instituted by the Respondents 1 to 5 in the year 2008, they came to know of the said preliminary decree and immediately they contacted their counsel with regard to the said ex parte decree and filed the said applications i.e. application under Order IX Rule 13 CPC seeking to set aside the said ex parte decree and the present application under section 5 of the Limitation Act. It is his further contention that initially the father of the Petitioners sold the schedule properties to one Yadireddy who is arrayed as 7th respondent herein and that the Petitioners entered into an agreement of sale with the 7th Respondent herein and further contended that had the summons been served on the Petitioners they would not have kept quite without contesting the said suit. 5 Per contra, the learned counsel for the Respondents 1 to 5 Mr. Abhinand Kumar Shavili contended that the Petitioners were served with summons and the suit record also clearly discloses that the suit summons were served on them and they have not chosen to contest the suit for the reasons best known to them and the fact that they came to know of the preliminary decree only after institution of suit O.S.No.122 of 2008 by the Respondents 1 to 5 is concocted only to get a favourable order from this court. According to the learned counsel these aspects were gone into by the trial court and after a detailed enquiry only the trial court came to the conclusion that the Petitioners have not approached the court with clean hands in filing the present application and as such they are not entitled to any equities and thus requested the court to dismiss the revision. 6 The facts are not in dispute. The Respondents 1 to 5 are the children of the 6th Respondent. Initially the 6th Respondent sold the suit schedule properties to the 7th Respondent and thereafter the Petitioners purchased the said lands by entering into an agreement of sale with the 7th Respondent. Having perused the entire record including the order passed by the trial court, which is impugned in this revision, there is some force in the contentions put forth by the learned counsel for the Respondents 1 to 5. It appears that the suit summons were served on the Petitioners but for the reasons best known to them they have not chosen to contest the said suit. But in my considered view that itself cannot be a ground to summarily reject the contention of the Petitioners. It should be remembered that this is a suit for partition where substantive rights are involved. The case of the Respondents 1 to 5 is that the plaint schedule lands are ancestral properties and as a matter of right they are entitled to partition of the suit schedule lands and defeating their rights the 6th Respondent sold away the lands to the 7th Respondent who in turn entered into an agreement of sale with the Petitioners. 7 Apparently the Petitioners herein have paid huge amounts at the time of agreement of sale and in my considered view the said suit in all fairness should have been decided on merits. Of course, when the Petitioners are absent on their own, it cannot be expected that the court below would decide the suit on merits but it would decide the same with the material available on record. Now that the Petitioners have come forward with a petition seeking to set aside the ex parte decree, it can be said that though initially there were laches on their part, now they have realized and filed the present application with a bonafide intention. Further, this court in a catena of decisions has taken a view that any lis between the parties shall always be decided on merits rather than on technicalities. Here the 6th Respondent i.e. father of the Respondents 1 to 5 did not contest the suit and the 7th Respondent who sold away the properties to the Petitioners has also not evinced any interest to contest the said suit and the Petitioners for obvious reasons were set ex parte. In those circumstances, this court is of the considered opinion that the Petitioners shall be given an opportunity to contest the said suit, but, however, the said indulgence can be shown only on certain conditions. 8 The learned counsel for the Respondents 1 to 5 Mr. Abhinand Kumar Shavili submitted that the Respondents 1 to 5 are in possession of the suit schedule lands and if at this juncture any order adverse to their interest is passed, it will prejudice their rights. Apparently, the preliminary decree was passed on 25.06.2007 i.e. about three years back and at this juncture it may not be proper to displace them. 9 Accordingly, this revision is allowed, the said delay of 384 days in filing the application under Order IX Rule 13 CPC to set aside the ex parte decree dated 25.06.2007 is hereby condoned, however, on payment of costs of Rs.5,000/- to be paid by the Petitioners to the Respondents 1 to 5 within four weeks from the date of receipt of a copy of this order. The learned counsel for the petitioners has paid the said amount of Rs.5,000/- to the learned counsel for the Respondents 1 to 5 in the open court now itself. 10 As it is the contention of the learned counsel for the Respondents 1 to 5 that they have proceeded with the agricultural activity in the plaint schedule lands, they may be permitted to carry on the said agricultural operations. No doubt, the suit filed by the Respondents 1 to 5 i.e. O.S.No.122 of 2008 seeking the relief of permanent injunction under section 41 of the Specific Relief Act was dismissed, but in the interest of the parties and as the Respondents 1 to 5 are carrying on agricultural operations, it is desirable that they shall be permitted to proceed with the said agricultural operations pending disposal of the suit. However, it is made clear that neither of the parties shall create third party interest over the suit schedule lands nor alter the nature of the property. 11 Taking clue from this order, the court below is hereby directed to decide the said application filed under Order IX Rule 13 C.P.C and, further, as it is an old suit of the year 2005, the same shall be disposed of as expeditiously as possible, preferably, within a period of six months from the date of receipt of a copy of this order. In the circumstances, each party shall bear their own costs. -------------- 07.09.2010 Kvsn