IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE THIRTIETH DAY OF APRIL TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.1156 of 2010 Between: Sri A. Srinivasa Rao .. Petitioner/defendant No.1 AND Akula Arjun Rao and others .. Respondent Petition under Article 227 of the Constitution of India praying to set aside the order dated 26-02-2010 in I.A. No. of 2010 in O.S. No.14 of 2003 on the file of the Senior Civil Judge, Medak. The petition coming on for hearing, upon perusing the petition and the grounds filed in support thereof and upon hearing the arguments of Sri A. Manoj Kumar, Advocate representing Sri Ghanta Rama Rao, Advocate for the petitioner and of Sri M. Santharam, Advocate representing Sri V. Tulasi Reddy, Advocate for the respondents 1, 4 and 6, the Court made the following: ORDER: The civil revision petition by the 1st defendant is directed against an order of return, dated 26-02-2010 of the Senior Civil Judge, Medak in I.A. No. of 2010 in O.S. No.14 of 2003. The petition in question was filed by the 1st defendant claiming that he shifted from Narsapur to Hyderabad 30 years earlier and he was not on talking terms with any of his brothers due to their envious conduct on his prosperity in business. The 1st defendant further claimed that his brothers never agreed to give any share to him in the joint family properties in spite of his requests and he came to know about the filing of the suit for partition and subsequent proceedings only in the second week of February, 2010 when the village postman handed over a notice issued by the High Court to his mother. Then he made enquiries and came to know that the suit notices were sent to a wrong address and hence, he sought for setting aside the decree and judgment in the suit, dated 04-04-2007. When this petition was filed into Court, the trial Court returned the same on the same day observing that the suit summons was received personally by the petitioner on 07-11- 2003, that the petitioner was set ex parte on 09-12-2003, that the petitioner and his two brothers had in fact engaged an advocate in the first appeal before the III Additional District Judge, Medak and that the petitioner admittedly knew about S.A. No.881 of 2009 filed by another brother of the petitioner. The trial Court, therefore, considered the contention of the petitioner about want of knowledge about the suit to be incorrect and also considered that the petitioner has to approach the High Court for any relief, as the second appeal is pending before it. The trial Court also felt that the petitioner has to seek his remedies only in the final decree proceedings instead of challenging the decree or seeking to get the preliminary decree set aside. The plea of the petitioner shifting to Hyderabad 30 years earlier, not being on talking terms with other family members, was also not considered to be explaining the delay properly, which has to be explained day to day. The time of return was specified to be seven days, against which the 1st defendant filed this revision contending that the observations and findings of the trial Court are erroneous without considering the matter on merits and have to be, therefore, reversed. The revision petitioner contended that he has a right in law to have his contentions adjudicated on merits in the suit after being given every opportunity to participate in the trial. Sri A. Manoj Kumar, learned counsel representing Sri Ghanta Rama Rao, learned counsel for the revision petitioner and Sri M. Shantharam, learned counsel representing Sri V. Tulasi Reddy, learned counsel for respondents 1, 4 and 6 are heard. The copies of the judgment and the preliminary decree, dated 04-04-2007 on the file of the Senior Civil Judge, Medak show that the 1st defendant was not a contesting defendant before the preliminary decree was passed. The preamble of the judgment states that the 1st defendant, among others, is one, the suit against whom was dismissed for default, while the preamble of the decree mentions the 1st defendant, among others, to have been ex parte/default. The judgment at the end of para 4 states the 1st defendant to have remained ex parte along with others. In any view, it is clear that the 1st defendant did not contest the suit and participate in the trial, as seen from the detailed contents of the judgment rendered by the trial Court. If the 1st defendant was, thus, ex parte, in whose absence the judgment and preliminary decree were rendered, he has a statutory right under Order IX of the Code of Civil Procedure to approach the trial Court with an application under Rule 13 thereof to set aside the ex parte decree against him. The 1st defendant’s right to apply is different from his right to have such application allowed, which is contingent upon his satisfying the Court either that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. The Court could not have deprived the 1st defendant of the opportunity to apply to the Court to have the ex parte decree set aside itself by seeking to determine the justification for the request in the endorsement of return itself. For satisfying the Court about the reasons on which he is seeking to have the ex parte decree set aside, the 1st defendant is entitled to have an opportunity to produce the relevant oral and documentary evidence before the trial Court, which, it has to appreciate and determine on merits. When the 1st defendant claims that he was not residing at Narsapur since 30 years and that the summons was taken to a wrong address, the trial Court could not have denied him an opportunity to establish before the Court that he was not personally served with summons on 07-11-2003 as borne out by the record. Similarly, he also could not have been deprived of an opportunity to show that he had no knowledge of the proceedings of the suit or the first appeal or even the second appeal till notice of the second appeal was served on his mother by the village postman. Whether the contentions of the 1st defendant are credible or not and whether they sound convincing or not, are matters to be decided after taking the petition on file if it is otherwise in order and after both parties are given every reasonable opportunity to place their version in this regard before the Court through appropriate oral and documentary evidence, but not by an early interruption by an endorsement of return. The conclusion of the trial Court that the pendency of the second appeal deprives the 1st defendant of the right to approach the trial Court, does not appear to be based on any provision or principle of law and confining the 1st defendant to seek his remedies before the High Court, does not appear to be in tune with any provision or principle of law. Similarly, the observation that the 1st defendant has to seek his remedies only in final decree proceedings and nowhere else, also appears to be opposed to the accepted principles in this regard and therefore, the impugned order has to be set aside and the trial Court has to be directed to take the petition on file, if it is otherwise in order, and then proceed to deal with and determine it on merits in accordance with law. Accordingly, the impugned order dated 26-02-2010 is set aside. The said interlocutory application in O.S. No.14 of 2003 filed by the 1st defendant, dated 26-02-2010 shall be taken on file if it is otherwise in order and be dealt with and decided on merits in accordance with law as expeditiously as possible at any rate within two months from the date of receipt of a copy of this order, uninfluenced by any observations made in this order. The civil revision petition is allowed accordingly. No costs. _____________________ G. BHAVANI PRASAD, J Date: 30-04-2010 Svv