THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3459 of 2006 Dated:21st December, 2009 Between: 1. Pabbu Mallaiah & Anr. ..... Petitioners AND 1. Madagoni Isthari & Ors. .....Respondents *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3459 of 2006 ORDER: The Civil Revision Petition is directed against the order dated 26.06.2006 passed in C.M.A.No.5 of 2006 on the file of III Addl. District Judge (I Fast Track Court), Nalgonda, whereby and whereunder the learned Additional District Judge allowed the Civil Miscellaneous Appeal filed under 43, Rule 1 [d] r/w.Sec.104 CPC setting aside the order dated 08.03.2006 passed in I.A.No.254 of 2005 in O.S.No.55 of 1989 on the file of the Senior Civil Judge, at Bhongir, Nalgonda District, filed by the 3rd defendant under Order 9, Rule 13 r/w.Sec.151 CPC to set aside the decree and judgment dated 04.09.1999 passed in O.S.No.55 of 1989, so far as he is concerned. 2. Background facts in a nutshell leading to filing of this revision by the plaintiffs in O.S.No.55 of 1989 on the file of the Senior Civil Judge at Bhongir, Nalgonda District, are: The plaintiffs filed the suit for partition and separate possession of their respective shares. The 1st respondent herein is one of the defendants i.e. D-3 in the suit. Despite service of notice, he did not choose to enter appearance. Of course, he pleaded in the affidavit filed in support of I.A.No.254 of 2005 that he has been prevented from attending the Court. Defendants 1 and 2 contested the suit and thereupon, a preliminary decree came to be passed on 04.09.1999. Defendants 1 and 2 filed an appeal being A.S.No.2038 of 1999 before this Court and the said appeal ended in dismissal for default. Thereafter, 3rd defendant filed I.A.No.254 of 2005 to set aside the decree and judgment dated 04.09.1999 passed in O.S.No.55 of 1989. He pleaded in the affidavit filed in support of the petition that he came to know of the judgment and decree only on 19.07.2003 and he filed the petition within 30 days of his knowledge i.e. on 19.08.2003. The plaintiffs filed counter resisting the application. The plaintiffs specifically pleaded that the reason assigned by the 3rd defendant to set aside the judgment and decree passed against him is a concocted one. Neither party chooses to adduce any evidence. The learned Senior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the petition filed by 3rd defendant is hopelessly barred by limitation and thereby proceeded to dismiss the petition, by order dated 08.03.2006. The 3rd defendant carried the matter in appeal to III Addl. District Judge (I Fast Track Court), Nalgonda. The learned Additional District Judge, on re-appraisal of the material brought on record, interfered with the findings recorded by the trial Court and thereby proceeded to allow the appeal setting aside the judgment and decree dated 04.09.1999 passed in O.S.No.55 of 1989 against 3rd defendant, by Order dated 26.06.2006. Hence, this revision by the plaintiffs. 3. Heard learned counsel appearing for the petitioners/plaintiffs and learned counsel appearing for the 1st respondent/3rd defendant. 4. Learned counsel appearing for the petitioners/plaintiffs submits that the lower appellate Court has committed an error in interfering with the order passed by the trial Court with regard to the date of knowledge of the judgment and decree passed in O.S.No.55 of 1989 by the 1st respondent/3rd defendant. A further submission has been made that the lower appellate Court on mere assumptions and conjectures proceeded to record a finding that the 3rd defendant got knowledge of the judgment and decree passed in O.S.No.55 of 1989 on 19.07.2003 and therefore, the order impugned in the revision is liable to be set aside. 5. Learned counsel appearing for the 1st respondent/3rd defendant submits that the lower appellate Court has given cogent and convincing reasons for interfering with the order of the trial Court and therefore, the order impugned in the revision is not liable to be set aside. 6. The only issue that calls for adjudication in this revision is, whether the 1st respondent/3rd defendant has offered sufficient reasons to set aside the decree and judgment passed in O.S.No.55 of 1989? 7. According to the 1st respondent/3rd defendant, he came to know of the judgment and decree on 19.07.2003. He chooses that date for counting the period of limitation for the purpose of filing the application under Order 9, Rule 13 CPC. The petitioners/plaintiffs specifically pleaded that the 3rd defendant has been served with summons in the suit, and he did not choose to contest the suit for the reasons best known to him and they further pleaded that he is very much aware of the appeal filed by the defendants 1 and 2 challenging the judgment and decree passed in O.S.No.55 of 1989. 8. The 3rd defendant did not choose to adduce any evidence to show that on 19.07.2003 he came to know of the judgment and decree passed in O.S.No.55 of 1989. Two reasons have been offered by the 3rd defendant – firstly, that defendants 1 and 2 threatened him and secondly, he came to know of the judgment and decree passed in O.S.No.55 of 1989 on 19.07.2003. Both these aspects have been specifically denied by the petitioners/plaintiffs. No evidence has been adduced by the 1st respondent/3rd defendant to substantiate his contention that he came to know of the judgment and decree passed in O.S.No.55 of 1989 on 19.07.2003. It is also to be noted that the defendants 1 and 2 filed an appeal being A.S.No.2038 of 1999 on the file of this Court and in the said appeal notice has been served on the 1st respondent/3rd defendant. Therefore, the plea advanced by the 1st respondent/3rd defendant that he came to know of the judgment and decree passed in O.S.No.55 of 1989 on 19.07.2003 cannot be sustained. Once the 1st respondent/3rd defendant received summons in the suit, it is for him to explain as to why he did not enter appearance in the suit and contest the same. The lower appellate Court interfered with the well-reasoned order of the trial Court on flimsy grounds. Therefore, the order impugned in the revision is liable to be set aside. 9. Accordingly, the Civil Revision Petition is allowed setting aside the order dated 26.06.2006 passed in C.M.A.No.5 of 2006 on the file of III Additional District Judge (I Fast Track Court), Nalgonda and consequently, the order dated 08.03.2006 passed in I.A.No.254 of 2005 in O.S.No.55 of 1989 on the file of the Senior Civil Judge, at Bhongir, Nalgonda District, is restored. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:21st December, 2009. cs THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3459 of 2006 Dated:21st December, 2009