THE HON’BLE SRI JUSTICE VILAS AFZULPURKAR CIVIL REVISION PETITION No.2299 of 2008 Dated 19th July, 2011 Between: Rachakonda Gopaiah and others …Petitioners And Smt. Gunturu Sri Laxmi. …Respondent The Court made the following: ORDER: The petitioners/defendants in O.S.No.455 of 2006 were set ex parte on 01.11.2006 as they failed to appear in spite of service of summons. Thereafter, the Court below decreed the suit ex parte on 07.11.2006. The petitioners/defendants then filed petition to set aside the ex parte decree along with an application – I.A.No.648 of 2007 to condone the delay of 156 days in filing the said petition to set aside the ex parte decree. The application for condonation of delay was seriously opposed by the respondent/plaintiff and after consideration of the same, the Court below under the impugned order had dismissed the application for condonation of delay by holding that the petitioners/defendants are negligent and in spite of service of summons they have not responded and as such they were rightly set ex parte and the conduct even afterwards does not deserved the condonation of delay. The said order is questioned in this revision by the petitioners/defendants. Heard Sri M.Venkatram Reddy, learned counsel for the petitioners/defendants and Sri K.V. Subba Reddy, learned counsel for the respondent/plaintiff. While the petitioners/defendants contend in the affidavit filed in support of the application for condonation of delay that the process server did not serve the summons as the address in the description shown in the plaint is not correct and that they recently came to know through the elder brother of the petitioners/defendants to whom a official from the Court informed about the case, whereupon they came to know of the ex parte decree having been passed. The learned counsel for the petitioners/defendants states that the reasons given in the affidavit even if not acceptable to the Court below on the ground of sufficient cause, still keeping in view the fact that the decree is one in the nature of specific performance, the Court below ought to have granted one opportunity to the petitioners/defendants to contest the suit on merits. The learned counsel for the respondent/plaintiff, on the other hand, very rightly contended that the very averment of the petitioners/defendants that they were not served with the suit summons and the address in the plaint was incorrect is deliberately made knowing that it is false. The learned counsel pointed out that summons in the suit were refused by the petitioners/defendants though the address shown is correct. He further pointed out that after the decree, the respondent/plaintiff filed E.P.No.12 of 2007 for execution and notices were ordered even in the E.P. which again were refused and the petitioners/defendants, who were judgment debtors, filed E.A.Nos.49 and 50 of 2007 on 01.03.2007 to set aside ex parte decree passed against them in E.P.No.12 of 2007. Thus, it is evident that at least from 01.03.2007, the petitioners/defendants were expressly aware of passing of the ex parte decree and there is absolutely no justification for the petitioners/defendants to come up with the present application on 08.05.2007. The Court below, on consideration of these aspects, came to the conclusion that the cause shown by the petitioners/defendants cannot be said to be sufficient cause and declined to condone the delay. While the learned counsel for the petitioners/defendants fairly submits that there are errors on the part of the petitioners/defendants in prosecuting the suit including prosecution of the applications for condonation of delay and for setting aside the ex parte decree, he, however, placed reliance upon the manner in which the ex parte decree was passed by the Court below on 07.12.2006, which reads as follows: “Evidence affidavit of the plaintiff filed. Perused the records, the suit document i.e., agreement of sale executed on 15.06.1999 on simple agreement is impounded, stamp duty and penalty collected. Ex.A.1 to A.3 are marked. Heard suit claim is proved. The suit of the plaintiff is decreed as prayed directing the defendants to receive the balance sale consideration and execute the regular Regd sale deed in favour of the plaintiff. No costs.” The learned counsel has placed reliance upon the decision of the Hon’ble Supreme Court in Balraj Taneja vs. Sunil Madan[1], wherein it was held that even an ex parte decree must show application of mind by the Court and it is not as if that merely because defendant does not appear, a decree can be passed merely for the asking. The present suit being a suit in the nature of specific performance, it was all the more necessary for the Court to have dealt with the crucial issues, namely, proof of the suit agreement, limitation aspect as well as readiness and willingness of the plaintiff. The view as taken by the Hon’ble Supreme Court was reiterated in the decision of this Court in Berger Paints India Ltd., vs. Syed Vicaruddin[2]. In view of this legal position, if we see the judgment passed by the Court below as extracted above, it would be evident that the ex parte judgment does not contain any reasons except a sentence saying that the suit claim is proved. The application of mind by the Court below being clearly absent, the decree cannot be sustained. However, dismissing this revision would revive the said ex parte decree, which is otherwise not sustainable. Hence, keeping in view the interest of substantial justice, the delay in making the application to set aside ex parte decree as well as the ex parte decree deserve to be condoned and set aside respectively. Therefore, the application for condonation of delay – I.A.No.648 of 2007 is allowed for different reasons and consequently with the consent of both the learned counsel the decree passed by the Court below in O.S.No.455 of 2006 dated 07.11.2006 is set aside subject to following conditions:- 1. The petitioners/defendants shall deposit costs quantified at Rs.5,000/- (Rupees five thousand only) to the credit of the Court below within four weeks from today; 2. On such deposit, the respondent/plaintiff shall be entitled to withdraw the same without furnishing any security; 3. The petitioners/defendants shall file written statement together with all documents on which they seek to rely upon within 60 days from today, failing which their right to file written statement shall stand forfeited; and 4. If such written statement is filed, the Court below shall frame issues within two weeks thereafter and take up the trial of the suit and complete the same expeditiously, in any case, within three months thereafter. Subject to the above, the Civil Revision Petition is allowed. In default of the petitioners/defendants complying with any of the conditions as above, the Court below shall be at liberty to pass appropriate orders to set them ex parte and proceed with the suit in accordance with law. ______________________ VILAS AFZULPURKAR, J 19th July, 2011 Note: Issue CC in one week. (B/o) GHN [1] AIR 1999 SC 3381 [2] 2005(1) ALT 614