THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.A.No.647 of 2011 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal is directed against the Orders passed in I.A.No.923 of 2009 in O.S.No.67 of 2008 by the V Additional District Judge (Fast Track Court), Guntur on 18.04.2011. The appellants herein are the petitioners in the above said petition and they have filed the said petition under Order 9 Rule 13 and Section 151 CPC for setting aside the exparte decree dated 27.08.2009. The parties in the appeal are being referred to as mentioned in the petition before the lower Court. According to the petitioners, they are the defendant Nos.8 to 10 in the suit and they have purchased an extent of 2371 sq.yards in the plaint schedule property from defendant Nos.6 and 7 for the sale consideration of Rs.5,22,000/- on 28.10.2004 under registered sale deed. In O.S.No.67 of 2008, they received summons and got filed Vakalat and when the matter was posted for filing written statement, the plaintiffs started compromise talks with them and they are trying to settle the disputes amicably out of the Court and due to that reason they did not consult their advocate and their advocate also did not inform about the steps in the suit. After compromise talks ended in futile, they immediately consulted their advocate, who in turn informed that the suit was decreed exparte on 27.08.2009. Their non-appearance and non filing of written statement was neither intention nor deliberate and was occurred due to the above said reasons and prayed for setting aside the exparte decree passed on 27.08.2009. Respondent Nos.1 to 3 and 5, who are plaintiffs in the said suit filed counter denying about the compromise talks between them and the petitioners and the petitioners never approached them for compromise either personally or through elders and the petitioners failed to mention the names of the elders before whom the compromise talks have taken place. As the petitioners did not file their written statement within the stipulated time, they were set exparte. Subsequently also they did not take any steps for setting aside the exparte Order dated 02.03.2009. There is no reason mentioned by the petitioners for delay in between 27.08.2009 to 18.09.2009 and as the plaintiffs are taking steps for execution of the decree, they have filed the present petition only to harass them and to drag on the proceedings. Hence the petition is liable to be dismissed. The lower Court by taking into consideration of the contentions of both the parties dismissed the said application. Aggrieved by the same, the present appeal is filed by the petitioners therein. The appellants’ counsel has pleaded that in view of the compromise talks between them and the plaintiffs in the suit, they did not contact their counsel and their counsel also did not inform them about the proceedings in the suit and after failure of the compromise talks, when they approached their counsel, they were informed about the passing of exparte decree dated. 27.08.2009. The respondent Nos.1 to 3 and 5’s counsel on the other hand has denied about the compromise talks between them and the petitioners. According to them, as the written statement was not filed by the appellants/petitioners, they were set exparete on 02.03.2009 and they did not take any steps for setting aside the exparte order passed on 02.03.2009 and when they filed the petition for execution of the decree passed on 27.08.2009, they came forward with the present petition only to harass them and to prolong the matter. Since the petitioners are seeking for setting aside the exparte decree passed against them, they must establish that they were prevented by sufficient cause from appearing before the Court when the matter was called for hearing. Admittedly, the petitioners have engaged their counsel and filed Vakalat. Thereafter, even though the matter was coming up for filing written statement, they have not filed the written statement and finally they were set exparte on 02.03.2009. Later on the 1st plaintiff was examined as P.W.1 on 02.07.2009 and Exs.A.1 to A.13 were marked and on 20.07.2009 P.Ws.2 to 4 were examined and after closing their evidence, the matter was posted for arguments. Thereafter, the exparte decree was passed on 27.08.2009. After the petitioners were set exparte on 02.03.2009, the exparte decree was passed after 4 ½ months, even then the petitioners have not taken any steps for setting aside the exparte Order. Since the petitioners made their appearance, they have to file the written statement within 90 days from the date of receipt of summons, but they did not file the same nor sought for any time for filing the written statement and only when the exparte decree was sought to be executed, they came forward with the present application. Moreover, the respondents have denied about the compromise talks alleged to have been taken place between them and the petitioners. Further, the petitioners did not mention the details on what date the compromise talks took place and in whose presence. In the absence of the same, the contention of the petitioners that compromise talks have taken place between them and the respondents cannot be accepted. Thus, the petitioners failed to establish sufficient cause for their non-appearance before the Court when the matter was called for hearing. Thus, they are not entitled for setting aside the exparte decree as held by the lower Court. The lower Court while dismissing the said petition has gone into the contents of the written statement filed along with the petition and made observations on the merits of the case as under: “Though the defendants 8 to 10 in their written statement contend that the plaintiffs 1 to 4 are not the legal representatives of deceased Batchu Sai Babu, the wife and one of the sons of Sri Babu are shown in Ex.A.2 with the names of plaintiffs 1 and 2. Further there is no dispute to the fact that the wife and children of late Sai Babu became the owners of plaint schedule property on the death of Sai Babu. In fact the title of defendants 8 to 10 to be traced out to the legal representatives of late Sai Babu. In spite of the above facts, it is not the specific case of the defendants 8 to 10 that the real wife and children of late Sai Babu only executed the original of Ex.A.2 document and that the photographs and thumb impressions affixed thereto are belonged to them. The defendants 8 to 10 even failed to disown the fact averred by plaintiffs that the photographs affixed on the original of Ex.A.2 as executants of the document are that of the defendants 1 to 3 in the present suit. Adding to it, the petitioners failed to show that they are in possession of the property purchased by them covered under the original of Ex.A.5 and further failed to show that they had ever exercised their rights and possession over the property said to have been purchased by them. On the other hand the plaintiffs filed Exs.A.8 to A.13 to show that they are the class.1 legal heirs of late Batchu Sai Babu. I find no bonafides in the petition.” When the petition was filed only for setting aside the exparte decree, the lower Court ought to have examined whether there is sufficient cause, which prevented the petitioners from appearing the Court when the matter was called for hearing and ought not to have gone into the merits of the case, which will certainly cause prejudice to the petitioners. Therefore, in the circumstances the findings recorded by the lower Court on the merits of the case are hereby set aside. In the result, the Civil Miscellaneous Appeal is dismissed without costs. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated: 29-09 -2011 Ksp