*HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO +CIVIL REVISION PETITION No.3843 of 2008 % 11.8.2011 # 1. Maddineni Venkateswarlu & another … Petitioners Vs. $ 1. Maddineni Rajamma @ Rajeswari & 2 others … Respondents ! Counsel for the petitioners: Sri T.S. Anand Counsel for the respondents: Sri T. Sreedhar <Gist: >Head Note: ? Cases referred: 1. 2009 (3) ALD 720 2. 2008 (3) ALD 320 (DB) 3. (2010) 6 Supreme Court Cases 786 HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITION No.3843 of 2008 Date: August 11, 2011 Between: 1. Maddineni Venkateswarlu & another … Petitioners and 1. Maddineni Rajamma @ Rajeswari & 2 others … Respondents * * * HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITION No.3843 of 2008 O R D E R: This revision is filed against the order dated 31.5.2008 passed in I.A. No.1931 of 2004 in A.S. No. of 2004 on the file of the District Judge, Ongole, which is an application filed under Section 5 of the Limitation Act to condone the delay of 679 days in filing the appeal. 2. The suit O.S. No.106 of 1998 was filed for recovery of possession of the schedule property and for injunction by the first respondent and the petitioners herein are the defendants. The defendants filed a written statement contesting the suit. Since the first petitioner became mad and the second petitioner went to Hyderabad and he came to know on enquiry that an ex parte decree was passed on 26.3.2002, they filed an application on 14.8.2002 for condonation of delay of 111 days in filing the petition to set aside the ex parte decree and the same was dismissed on 02.7.2003. Against that order, C.R.P. No.6752 of 2003 was filed and it was also dismissed. Therefore, the regular appeal was filed after obtaining certified copies. After the dismissal of the C.R.P. on 02.4.2004 and consequently there is a delay of 679 days in filing the appeal. The respondents filed a counter contending that the first petitioner is a court bird and the petitioners were set ex parte on 10.8.1999, the plaintiff was examined on 01.9.1999 and the decree was passed subsequently on 26.3.2002. 3. The reasons putforth for condonation of the delay in filing the appeal are not proper. Since the earlier application was dismissed, this application for condonation of the delay on the same grounds is hit by the principles of res judicata. The learned District Judge, after considering the material on record and after considering the evidence of P.Ws.1 and 2, dismissed the application. Aggrieved by the said order, the present revision is filed. 4. The point for consideration is whether the order of the Court below in refusing to condone the delay in filing the appeal is proper? 5. The effort of the counsel for the respondents is that since the earlier application to set aside the ex parte decree after condonation of the delay has been dismissed, on the same grounds the present application is also filed and therefore the delay cannot be condoned. In fact, this argument found favour with the learned Judge. Further more, reliance is also placed on a decision in K. Srinivas v . K. Govind and others[1], which supports the contention of the respondents. Reliance is also placed on the decision of a Division Bench of this Court in Charminar Co-operative Urban Bank Limited, Hyderabad v . State Bank of Hyderabad, Gunfoundry, Hyderabad and another[2], wherein the facts of that case when the ground of cause service of summons was found to be untrue, the Court dismissed the application. The above two decisions do not say that on principles of res judicata the plea is barred. 6. There is no dispute about the fact that as against an ex parte decree, a party has got a right to file an appeal or to apply to the Court to set aside the ex parte decree. To file an appeal is a statutory right given to the party. The reasons for setting aside ex parte decree and the conditions emphasized thereunder are quite different. While considering the claim for setting aside the ex parte decree, the Court is concern only with the cause for non-appearance on the date when the decree was passed. Whereas, when a statutory right is available in preferring an appeal, the considerations before the appellate court are quite different and the scope of decision in the appeal is wider than the scope of determination of an application under Order IX Rule 13 of the Code of Civil Procedure. 7. In order to apply the principles of res judicata or constructive res judicata it is needless to say that the earlier matter and the subsequent matter shall be competent to be tried by the same Court of competent jurisdiction. Evidently, the Court, which decides an application under Order IX Rule 13 CPC and incidentally considers the application for condonation of the delay, is not a competent Court to decide about the appeal or the reasons for condonation of the delay in filing the appeal made in the appellate court. Therefore, invoking the principles of res judicata or estoppel does not arise at all. Merely because the party has not approached the appellate court at the first instance and approached only the lower court for setting aside the ex parte decree is not a ground for denying justice or refusing to condone the delay when law recognizes the remedies as found by lower Court itself. Evidently, if a party wants to prefer an appeal, court fee has to be paid and it will be only against a decree in which evidence was not let in. Whereas, if an application under Order IX Rule 13 CPC was filed and if it is allowed, the party will have an opportunity to adduce evidence and there will be clear decision of the Court on the matters in issue. Therefore, the reasoning given in the decision in K. Srinivas v . K. Govind and others (1 supra) cannot be taken into consideration, so also the decision of the Division Bench of this Court in Charminar Co-operative Urban Bank Limited, Hyderabad v . State Bank of Hyderabad, Gunfoundry, Hyderabad and another (2 supra). In the particular facts of that case, the Court was of the opinion that the plea of non- service of summons was found to be a falsity. 8. The reasons for not condoning the delay in filing an application to set aside the ex parte decree which was confirmed by the High court may be relevant, but they are not conclusive for re-consideration and the first appellate court has to consider the condonation of delay keeping in view the other circumstances. The decision of the Division Bench of this Court referred to above points to the negligence and the lack of diligence in prosecuting the case on a false plea of non-service of summons. If the contention of the counsel for the respondents is to be accepted, then the very purpose of providing different remedies to a party will become ineffective. At the cost of repetition, it has to be borne in mind that the scope of determination of points in appeal are quite different from determination of the decision to set aside an ex parte decree. Even if there are no grounds to set aside the ex parte decree still the right of appeal cannot be closed and mere refusal of the part of the period of delay which was refused to be taken into consideration in condoning the delay in setting aside the ex parte decree, shall not bar the consideration of the subsequent delay to be considered which was evidently because of the pendency of the earlier application. 9. In this case, evidently the rights of the parties in an immovable property are involved and there is no advantage which the revision petitioners get by not contesting the case. The Court below has only taken into consideration that since the earlier delay of 111 days was not considered, the subsequent delay, which was evidently caused because of the time taken for the final disposal of the application, was not considered. In this connection, it is useful to go through the decision in Improvement Trust, Ludhiana v . Ujagar Singh and others[3], wherein their Lordships found that hyper technical approach is to be avoided and unless mala fides are writ large on the conduct of the party as a normal rule delay should be condoned. It was also further found that an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technicalities and there can be no straitjacket formula that can be prescribed and each case has to be weighed on its facts and circumstances. 10. In this case also there was said to be delay of 679 days in filing the appeal, which includes the 111 days of original delay and subsequent delay in presenting the Order IX Rule 13 application. Evidently the first petitioner is said to be a man of unsound mind and the second petitioner is said to be absent during the period and no advantage or mala fides can be attributed for not prosecuting the case by the petitioners. I have no hesitation in holding that the reasons for refusal to condone the delay in setting aside an ex parte decree application will not in any way come in the way of the appellate court to consider the reasons for not preferring the appeal and to condone the delay. There is no proof of mala fides of the petitioners. Therefore, in view of the above circumstances and in view of the judgment of the Supreme Court referred to above, I feel the refusal to condone the delay in filing the appeal is not proper and the parties should be given an opportunity to express their grievances against the judgment in which valuable rights are involved and where one of the party to the proceeding is a man of unsound mind. 11. Therefore, in the above circumstances, the civil revision petition is allowed setting aside the order of the Court below and the delay in filing the appeal is condoned on payment of Rs.1,500/- to the Legal Services Authority in the lower Court within four weeks and on such deposit and proof of the same, the lower appellate court is directed to register the appeal and proceed. No order as to costs. ____________________________ N.R.L. NAGESWARA RAO, J Date: August 11, 2011. BSB L.R. copy to be marked [1] 2009 (3) ALD 720 [2] 2008 (3) ALD 320 (DB) [3] (2010) 6 Supreme Court Cases 786