THE HONOURABLE SRI JUSTICE B.PRAKASH RAO C.R.P.5090 OF 2010 ORDER: The petitioner, who is the defendant in the suit, filed this revision invoking the powers of this Court under Section 115 of the Code of Civil Procedure inter alia seeks to assail the correctness of the orders in dismissing the appeal filed by him in C.M.A.No.127 of 2010, dated 28-10-2010, on the file of the III Additional Chief Judge, City Civil Court, Hyderabad confirming the orders of dismissal of an application filed by him in I.A.No.462 of 2010 in O.S.No.5155 of 2009, on the file of the X Junior Civil Judge, City Civil Court, Hyderabad, purportedly filed under Order 9 Rule 13 of the Code of Civil Procedure seeking to set aside the ex parte decree passed against him on 8-6-2010. Heard Sri G.L.Narasimha Rao, learned counsel for the petitioner and Sri C.Ramesh Sagar, learned counsel appearing on behalf of the respondents. The respondents have filed the suit in O.S.No.5155 of 2009, on the file of the X Junior Civil Judge, City Civil Court, Hyderabad against the petitioner, inter alia, seeking for eviction of the petitioner from the suit premises alleging non-payment of rent for the period from August 2006 to the end of September, 2009, which amounts to Rs.1,61,600/- and for recovery of the rents for the Month of October and November 2009, and for future damages till delivery of possession. The suit is preceded by issuance of a legal notice under Section 106 of the Transfer of Property Act on 1-11-2009, to which the petitioner replied by a notice dated 20-11-2009. The suit was filed on 3-12-2009, after service of summons, the petitioner was set ex parte on 3-5-2010 and the matter was posted for ex parte evidence on 3-6-2010. Accordingly, after examining PW.1 and marking the documents in Exs.A.1 to A.8 on 8-6-2010 an ex parte decree was passed. The petitioner has filed the present application in I.A.No.462/2010 under Order 9 Rule 13 of the Code of Civil Procedure to set aside the said ex parte decree, pointing out that the present suit is nothing but to harass, which is subsequent to another suit already filed in O.S.No.4080 of 2008 for arrears, and the respondents want to enhance the existing rent. No doubt, it is stated that the copy of the plaint was served on him, however, the list of documents were not served and therefore he was handicapped to file the written statement without going through the documents filed by the respondents. Hence, a memo was filed by the counsel appearing for the petitioner on 20-6-2010, but without considering the same, the petitioner was set ex parte, and thus, the entire process as taken recourse to by posting for exparte evidence and examining the witness PW.1 and marking of the documents is without an opportunity being given to the petitioner to file the written statement, hence, the absence of the petitioner is not deliberate nor wanton and except for the aforesaid reasons, hence sought for giving an opportunity. This application was contested by the respondent through a counter affidavit, which is sworn to by the respondent No.1 herein denying the entire allegations and pointing out that earlier a suit has been filed in O.S.No.5155 of 2009 for recovery of arrears of rent amount to Rs.1,61,600/- and the present suit is for eviction. The summons were not served on the petitioner on 24-1-2010 for his appearance on 8-2-2010. Thereupon, the petitioner appeared through a counsel and it was adjourned to 22-2-2010 for filing the written statement. However, no written statement has been filed nor any extension is sought by filing a due application. The allegation that the junior counsel was present on 28-4-2010 was not correct and thus in spite of granting sufficient time repeatedly no appearance was made by the petitioner on 28-4-2010, hence, he was rightly set ex parte and subsequently the ex parte evidence is recorded and the suit has been rightly decreed. Apart from this, several allegations were also made, which are not necessary as such for the purpose of consideration of the present application. Initially, the trial Court, on consideration of the respective submissions and the allegations, did not find favour with the petitioner and dismissed the application on the ground that admittedly having made an appearance on 3-2-2010, no written statement was filed within the statutory period of 90 days, and therefore, he was rightly set ex parte on 28-4-2010 and rightly the said ex parte decree was passed. There is no application for extension of any time and having kept quite all these days has now approached the Court for setting aside the ex parte decree. Therefore, by placing reliance on the principles laid down in Mohammed Yusuf Vs. Faij Mohammad & Others[1] wherein it was held that the grant of extension of time beyond 30 days is not automatic and it should be exercised with caution and for adequate reasons, and any such grant of time further should be based on clear satisfaction of justification. Therefore, the petitioner has not filed any written statement even though sufficient time is granted and hence no indulgence can be shown in his favour. The petitioner preferred an appeal against the said order in CMA.127 of 2010 once again reiterating the self same grounds and seeking for providing an opportunity. The lower appellate Court, after perusing the respective contentions and the pleadings as contained from both sides, agreed with the findings of the trial Court and once again held that in fact as rightly observed by the lower Court appellant failed to file petition under Order 9 Rule 7 of the Code of Civil Procedure showing sufficient reasons for his absence on the dates when the suit was posted i.e., on 3-2-2010, 28-4-2010, 3-6-2010 and 8-6-2010. Similarly, it is clear from the order of the lower Court that the appellant failed to establish that there was sufficient ground for setting aside the ex parte decree. Thus, having found no valid grounds warranting any interference, dismissed the appeal. Hence, the revision. Having heard the counsel on either side and on perusal of the material on record, the only point which arises for consideration is as to whether on the facts and circumstances, the petitioner has made out any sufficient ground to warrant setting aside of ex parte decree? There is no dispute in regard to the aforesaid chequered events. After filing of the suit on 3-12-2009, the matter has undergone adjournment. Consequent upon the appearance in response to the summons, which have been received by the petitioner, the petitioner did make an appearance on 3-2-2010 and subsequently, the matter under went adjournment and ultimately by 28-4-2010, since no appearance was made nor any written statement is filed, he was set ex parte. Admittedly, the petitioner has not filed any written statement nor any application seeking for extension of time except a memo seeking for supply of documents. There is no explanation whatsoever forthcoming on behalf of the petitioner as to why such petition could not be filed by him seeking extension of time. As rightly placed reliance in Mohammed Yusuf Vs. Faij Mohammad the Hon’ble Supreme Court has held as under: “High court should not have permitted filing of written statement in exercise of its writ jurisdiction after delay of three years, particularly when both the trial Judge as also the Revisional Court had assigned sufficient and cogent reasons in support of their orders rejecting the application for condonation of delay”. As held in the aforesaid decision in Mohammed Yusuf Vs. Faij Mohammad there is a mandate on the part of the petitioner to file written statement within a period of 90 days and the said period of 90 days was already expired and no extension is sought either under Section 148 of the Code of Civil Procedure or otherwise by any specific application. Even in the affidavit filed in support of the present application where the petitioner sought for seeking to set aside the ex parte decree nothing has been mentioned nor any reason is shown as to why such application could not be filed. The trial Court and the lower appellate Court have consistently and concurrently held that the petitioner having availed sufficiently the time much more than what is contemplated under the law, did not file written statement, much less, made any appearance, hence, does not warrant any interference. This finding of fact by both the courts is a concurrent one and the same would be binding on this Court. Therefore, in view of such conclusive finding of fact staring at the petitioner, there is no warrant to exercise as contemplated under Section 115 of the Code of Civil Procedure to interfere with the same. However, it is also pointed out that already there is a decree for substantial sum of money against the petitioner and subsequently there are arrears and now the eviction is sought. The dilatory tactics on the part of the petitioner are quite apparent only for the purpose of protracting the litigation, but not a bona fide one. There is no merit in the revision and the same is accordingly dismissed. No costs. _________________ (B.PRAKASH RAO,J) Date:04-3-2011 grk [1] (2009) 3 SCC 513