IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FIRST DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.301 OF 2008 BETWEEN P. Ramulu and others. …PETITIONERS AND Jangadi Raju. …RESPONDENT Counsel for the petitioners: MR. DAMODAR REDDY Counsel for the Respondent: MR. K. GOVERDHAN REDDY The Court made the following: - ORDER: The petitioners/defendants in O.S.No.22 of 2004 are aggrieved by the order of the trial Court dated 09.10.2007 under which their application in I.A.No.86 of 2006 was disallowed. It appears that the defendants did not file written statement and ex parte decree was passed on 17.09.2004. The petitioners, thereafter, filed application to set aside the ex parte decree i.e. I.A.No.86 of 2006 together with an application seeking condonation of delay i.e. I.A.No.237 of 2004. The application for condonation of delay, aforesaid, was allowed on 10.03.2006 and thereafter, I.A.No.86 of 2006 was coming up for hearing. 2. The docket order on the original record shows that on 30.03.2007 the Court below allowed I.A.No.86 of 2006 on payment of costs of Rs.500/- and also gave a direction to the petitioners/defendants to file written statement on or before the next date of hearing. Thereafter, on 19.04.2007 the docket records that costs paid and memo filed by the petitioners for extending time for costs was allowed and posted to 04.06.2007. On 04.06.2007 it records that costs paid and for written statement call on 29.06.2007. Thereafter, the matter underwent four adjournments and on the last date i.e. 09.10.2007 the Court below passed the impugned order holding that the petitioners are not entitled to relief, as they failed to comply with the condition with respect to filing of written statement as ordered by the Court on 30.03.2007. Aggrieved thereby, the present revision is filed. 3. Heard both sides. 4. There are two different orders passed by the Court below in I.A.No.86 of 2006 one dated 30.03.2007 and the other the impugned order dated 09.10.2007. I have verified the lower Court record and it is evident that I.A.No.86 of 2006 was not disposed of by order dated 30.03.2007 but it is being called from time to time for filing written statement by the defendants. 5. While the learned counsel for the respondent/plaintiff states that the said order dated 30.03.2007 imposed two conditions on the defendants viz. payment of costs as well as filling of written statement, a reading of the docket order shows that the said order on 30.03.2007 was only with respect to imposing condition as to costs, which was complied with. There was a direction for filing written statement on or before 19.04.2007 and subsequent adjournments were also given for the aforesaid purpose, hence, it cannot be said that there was any condition of filing written statement by 19.04.2007. The impugned order dated 09.10.2007 is passed by the Court below under a mistaken impression that the order of 30.03.2007 contains two conditions and the one relating to written statement was not complied with by the defendants. If really, the said assumption of the Court below was right there was no reason to keep I.A.No.86 of 2006 pending after 19.04.2007 and in fact, it was being called from one day to another for the purpose of filing written statement and the said IA is only disposed of when the impugned order dated 09.10.2007 was passed. 6. This Court while issuing Notice before Admission on 29.01.2008 had granted interim stay and the said stay operates till now with the result that there is no further progress after the ex parte decree. The suit being one for declaration of title and recovery of possession, I am of the view that in the interest of justice, one opportunity deserves to be given to the defendants. In the circumstances, the impugned order is set aside, subject to the following conditions: 1. The petitioners/defendants shall deposit a further sum of Rs.500/- to the credit of the suit within two (2) weeks from today. 2. The petitioners shall also file written statement in the Registry of the Court below within two (2) weeks simultaneously with costs. 3. Subject to the above compliance, the petitioners shall be at liberty to cross-examine the plaintiff’s witnesses on the date which the trial Court shall fix and shall not seek any adjournment for that purpose. 4. The petitioners shall file affidavit evidence in lieu of chief- examination of the defendants and/or their witnesses within two (2) week after cross-examination of plaintiff’s witnesses and thereafter, shall lead their further evidence, if any, as directed by the trial Court. 5. The respondent shall be entitled to withdraw the costs, as above, without security. On consideration of the evidence, the trial Court shall endeavour to hear and dispose of the suit afresh on merits within one month of closure of evidence on either side. 7. Learned counsel for the respondent states that the decree being of 2004, his instructions are that the same is already executed. If that be so, the said execution of the decree shall abide by the result of the decision of the trial Court in pursuance of the directions as above. The civil revision petition is accordingly allowed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J July 1, 2010 DSK