THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A. No. 540 of 2009 Dated: 20.08.2009 Between: D. Karthik Kumar. .. Appellant/petitioner/defendant. And B. Hanumanth Goud and another. .. Respondents/Respondents/Plaintiffs THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A. No. 540 of 2009 Judgment: (per Hon’ble Sri Justice A. Gopal Reddy) This appeal by the defendant is directed against the orders of the I Additional Chief Judge, City Civil Court, Secunderabad, dated 18.03.2009, passed in I.A. No. 203 of 2009 in O.S. No. 151 of 2007, dismissing the petition, filed under Order IX Rule 13 read with Section 151 CPC, seeking to set aside the ex parte decree passed in the suit on 12.11.2008. We have heard the learned counsel for the appellant/defendant and the learned counsel for the respondents/plaintiffs. The respondents/plaintiffs instituted the suit for declaration of title in respect of the suit schedule property i.e., House bearing No.10-5- 811, Plot No.36, admeasuring 233.33 sq. yards, in SurveyNo.844/13, situated at S.C. Cooperative Housing Society, Nandanar Nagar, Tukaram Gate, Lalaguda village, Secunderabad, for cancellation of the Release Deed bearing document No.1108 of 2001, for recovery of possession and for future damages @ Rs.15,000/- per month from the date of the suit till delivery of vacant possession. It was alleged in the plaint that the defendant’s father was a tenant in the suit schedule property and after his demise the defendant continued as a tenant under an oral tenancy. The defendant paid rents up to the month of January 2005 and thereafter he committed willful default in payment of rents. The plaintiffs purchased the suit schedule property from one K. Muralidhar under a registered sale deed bearing document No.929 of 2003, who in turn purchased the property from the heirs of one M.C. Ramdass, who was a member of the Scheduled Castes Cooperative Housing Society Limited and in whose name the property was allotted, but the registered sale deed was executed in the name of his heirs after his demise, vide document No.894 of 2003, dated 29.04.2003. Since the defendant committed default of payment of rents, the plaintiffs filed R.C. No.163 of 2005 on the file of the Principal Rent Controller, in which the defendant filed a counter contesting that he is the owner of the property under a Release Deed executed by his father, vide document No.1108 of 2001. In view of the denial of their title over the suit schedule property, the plaintiffs filed the suit for declaration of title and for cancellation of the release deed obtained by the defendant and for recovery of possession and future damages as aforementioned, in which an ex parte decree was obtained. Subsequently, the appellant/defendant filed the I.A. No.203 of 2009, under Order IX Rule 13 CPC, seeking to set aside the ex parte decree passed against him in O.S. No. 151 of 2007, contending that as the summons were not duly served on him, he has not appeared before the Court and there is no any deliberate intention on his part to avoid the summons. He further contended that he is the absolute owner, possessor and occupant of the suit schedule property, which was purchased by his father during his life time from one M. Challappan Ramdass in 1978, and in turn his father executed a release deed in his favour, vide document No.1108 of 2001, dated 01.06.2001, and after obtaining the release deed the property was mutated in his name. While so, on 24.01.2009, when he was away from the city and was middle of the journey he received a phone call that the Court bailiff evicted his old aged mother and household goods and kept the house with lock and key by executing a warrant in EP No.8 of 2009, and on returning to Hyderabad he came to know about the ex parte decree in the suit, hence the said decree should be set aside. The respondents/plaintiffs filed a counter opposing the petition and contending that several times they paid process to serve the summons on the appellant/defendant as per the directions of the Court, but the appellant/defendant has intentionally evaded to receive the summons and the summons sent by registered post were returned on 24.03.2008 with an endorsement ‘as not claimed’. Observing the conduct of the appellant/defendant and to give one more chance to him, the lower Court ordered for substitute service in Eenadu Telugu Daily and in spite of service of summons by way of substitute service the appellant/defendant has not appeared before the Court, and hence, an ex parte decree was passed. Therefore, the petition filed by the appellant/defendant seeking to set aside the ex parte decree is liable to be dismissed. A perusal of the impugned order would go to show that the suit summons ordered by the Court below to the appellant/defendant, were returned by the Process Server with an endorsement that the summons were affixed on the door on 21.01.2008 as the door was locked. Added to the same, again fresh notice was ordered, and when the notice was sent by registered post, it was returned with an endorsement ‘Not claimed’. In spite of the same, the lower Court, to give one more chance to the appellant/defendant, ordered notice by way of substitute service by publishing the same in Eenadu Telugu Daily, which was also got published in Eenadu Telugu newspaper and even after that he has not appeared in the matter, therefore, on filing the proof of publication, the appellant/defendant was set ex parte. After examining the respondents/plaintiffs and marking the documents, the matter was again posted on 12.11.2008 from 29.10.2008 for judgment. Even by that date also, the appellant/defendant has not appeared, and therefore, the lower Court passed an ex parte decree basing on the evidence and material available on record, which clearly goes to show that since last ten months the appellant/defendant evaded to receive either summons or kept quiet in spite of knowing the fact of filing the suit, and the explanation offered by him that he came to know about the filing of the suit and obtaining of ex parte decree only on 24.01.2009 when the Court bailiff executed a warrant, is only a ruse to wriggle out of the consequences. In view of the same, we do not see any reason to interfere with the impugned order passed by the lower Court refusing to exercise the discretion. Further, the appellant/defendant has not filed any application to condone the delay in filing the petition to set aside the ex parte decree granted on 12.11.2008. When, admittedly, the application to set aside the ex parte decree was not filed within 30 days from the date of such decree, we do not see any merit in the contention advanced by the learned counsel for the appellant that he came to know about the ex parte decree only when the Court bailiff executed the warrant in the EP. In view of the same, the C.M.A. fails and is accordingly dismissed. No costs. _______________________ A. GOPAL REDDY, J. ___________________ B. CHANDRA KUMAR, J. Date: 20.08.2009 Nsr