The High Court · 2025

...PETITIONER/RESPONDENT/DEFENDANT AND 1 2 J 4 Mrs. Zehra.Bqqrln.,Wo-LaJe Mohammed Raziuddin, aged about 57 years, Occ. Househol d, Rl o 17 -2-1 81 I 4 1, Al Jabri Colony, Yakut[ura, Hyderabdd. Mohammed Quadeer Uddin, S/o Late Mohammed Raziuddin, aged about 32 . Occ. Business, Rlo 17-2-181141 , Al Jabri Colonyl yakutpura, years, Hyderabad. Mohammed fvluneeruddin, S/o Late Mohammed Raziuddin, aged about 30 ygals, . Occ. Business, Rlo 17-2-181141, At Jabri Cotony, yakutpura, Hyderabad. Mohammed Masi Uddin, S/o Late [\4ohammed Raziuddin, aged about 2g ypaF,.Occ. Business, R/o,17-2-181141, Al Jabri Colony, yakutpura, Hyderabad. Respondents No.1, 3 & 4 are represented by their G.P.A holder Mohammed Quadeer Uddin (Respondent No.2) ...RESPONDENTS/PETITIONERS/PLAINTIFFS lA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in O.S No.113'1 of 2013 on the file of the XXI Junior tffiFry Civil J udge, c.R P. City Civil Court, at Hyderabad pending disposal of the present CIVIL REVISION PETITION NO: 379 OF 2024 Petition under Articre 227 of the constitution of rndia aggrieved by the order dated 22.12.2023 passed in l.A No.494 of 2023 in o.s No.iis 1 of 2oi3 on thefile of the court of the XXI Junior civit Judge, city civit court, at nyJeiaoao. Between: Mrs Occ Hvd . Tahera Qamer, Wo Mohammed eamaruddin, aged about 51 years, . Teacher, R/o H.No.1l-3-744, Zafar Road, butside VaXuipuia, erabad. AND ...PETITIONER/RESPONDENT/DEFENDANT I Mrs Zehra .Bggrln, Wo Late l\rlohammed Raziuddin, aged about 57 years, -' Occ. Household, Rlo 17-2-181141 , Al Jabri Cotony, iaf<utpura, HyderabiJ.- Mohammed Quadeer Uddin, s/o Late Mohammed Raziuddin, aged about 32 -a;i"'.r:-V"kr$;rr. years, Occ Business, Rto 17-2_jB1t4.l, At Jabri Hyderabad. 2 J 4 lt/ohammed ltrluneeruddin, s/o Late Mohammed Raziuddin. aoed abor]t 30 years, ucc tsusiness, Rlo 17_2_181141, Al Jabri Colony] yakutbura, Hyderabad. Mohammed Masi Uddin, S/o Late Mohammed Raziuddin, aged about 2g years, occ Business, Rto 17_2_181t41, Ai Jibri C;i.;i, y;i;6'ra Hyderabad. Fsspondents_ No. l, 3 and_ 4 are represented by their G.p.A holder Mohammed Quadeer Uddin (Respondent'No 2) - - - ...RESPONDENTS/PETITIONERS/PLAINTIFFS IA NO: 1 OF 2024 Petition under section 151 cpc praying that in the circumstances stated in the.affidavit fired in support of the petition, ine Hign court may oe preaseJ to ltay af t further proceedings in os No.'r 131 of 2013 on the fire oi t" kxt .runio,. civil Judge, city civir court, at Hyderabad pending disposar of the present C.R.P. Gounsel for the Petitioner: Sri A. Najeeb Khan Counsel for the Respondents: Sri Mirza Shah Nawaz Baig The Court made the foilowing: COMMON ORDER o I I I I I i THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CIVIL REVISION PETITION No.37O &,379 of 2O24 COMMON ORDER: C.R.P.No.37O of 2024 is filed assailing Order dated 22.12.2023 in I.A.No.494 of 2023 in O.S.No.1131 of 2013, passecl by the learned XXI-Junior Civil Judge, City Civil Court, Hyderabad, wherein and whereby the application Iiled by the respondents under Section 151 of CPC, to set aside the eschewed Order dated 26.1O.2015, was allowed.

2. C.R.P.No.379 ot 2024 is filed assailing Order dated 22.12.2023 in I.A.No.495 of 2023 in O.S.No.1131 of 2013, passed by the learned XXI-Junior Civil Judge, City Civil Court, Hyderabad, wherein and whereby the application hled by the respondents under Order XVIII Rule 17 of C.P.C, to recall P.W.1, was allowed.

3. Since the issue in both the revision petitions is interconnected and the result is interdependent, both these petitions are heard together and are being disposed of by a Common Order. -/ 2 4' Heard sri A.Najeeb Khan, learned counser for the petitioner and Sri Mirza Shah Nawaz Baig, learned Counsel for respondents

5. Petitioner herein plaintiffs in the suit. 1S defendant and respondents

6. Brief facts of the case which 1ed to filing of the present revision petition are that respondents herein have filed a suit uftle O.S.No. 1131 of 2013, against the petitioner for eviction; that petirioncr entered appearance and rired writlen starement denying the suit claim and issues were framed, trial has commenced ar-rd p.W. 1 was examined and the matter was coming up for cross-examination of p.W. 1. However, p.W. 1 did not turn up for cross_examination, his evidence was eschewed on 26.10.2015. The respondents filed an application uide I.A.(SR).No.482 of 2015, on 02.11.201S to set aside the eschewed Order dated 26.10.2015, however, the same was returned with objections by the Office of the trial Court. On 18.O2.2O16, respondents resubmitted the application uide I.A.(SR).No.482 of 2075, aiong with an application urde I.A.No.38 of 2Arc, to condone the delay of 64 days in resubmitting the application and the said application was dismissed idqtrro1 ,'4,.i:'f'ti,r,*.: :/ - -)

29.o4.20:16.Therespondentsliledanapplicationuide I.A.No.136 of 2016, to set aside the Order dated 29'O4'2016 and the same was also dismissed on 03'O 1 '2O 17 ' and the matter was posted for further evidence of respondents/ plaintiffs' Since' the respondents / plaintiffs failed to adduce any evidence' suit was dismissed on 17.O2 2017, for non-prosecution'

7. Thereafter, respondents hled an application under Order IXRulegofC.P.C,torestorethesuitalongwithanapplication uidel'A.No.2o4of2oIT,tocondonethedelayof3Tdaysinfiling the application for restoration and the same was dismissed by the trial Court on Ol 'Og '2017 ' Aggrieved by the same' re spondents preferred revision petition uide C'R'P'No '71O2 of 20L7 , and this Court uide Order dated 04.12 2O20 and the delay of 37 days in hling the application was condoned and consequently, suit was restored The respondents ltled two applications uide I.A.No'494 of 2023 ' under Section 151 of C.P.C, to eschew Order dated 26'LO'2015 and another application uide I.A.No.49 5 of 2023, under Order XVIII Rule 17 of CPC, to recall P.W. 1. Petitioner ltled counter resisting the said applications 4

8. Tl-re trial Court on due consideration of pleadings and contentions put forth by both the parties, allowed both the applications ulde impugnecl Order dated 22.12.2023. Aggrieved by thc same. present revision petil ions are filed. 9 evidence, without Learned Counsel for the petitioner would submit that trial the Order clated Court allowed the applications to set asicie 26.70.2075 and to recall p.W. 1 for adducing considering the fact that earlier, respondents filed application sceking same relief uide LA.(SR).No.a82 of 2015 and the samc was dismissed and respondents have not taken any steps to set aside the same. Therefore, the application filed by the rcsponde nts uid.e LA.No.494 of 2023 is hit by constructive res-judicata and thus, the trial Court ought to have dismissed the same instead of allowing the applications. He further submitted that the trial Court has come to erroneous conclusion that earlier, respondents have not filed any application seeking same relief and the same have not been conclusively decided by the trial Court, without considering the fact that application file d by the respondents earlier, was returned and application filed to restore the said application withde.fuy was also dismissed and respondents have not taken steps to set aside the dismissal Order and thus the observation w -i 5 of the trial Court is factually incorrect. Learned Counsel for the petitioner further submitted that since the application hled by the respondents set aside the Order of eschewing evidence of P.W. 1 itself is unsustainable, the application uide I'A'No 495 of 2023, filed to recall P.W.1 is not maintainable and is liable to be dismissed.

10. Per contra,learned Counsel for respondents would submit that the trial Court has rightly observed that the application filed by the respondents earlier was not decided on merits and was returned on technical objections, therefore, res-judicata has no application and thus, the revision petitions filed by the petitioner arc misconceived and the same are liable to be dismissed. He further submitted that since the suit has been restored to its original stage, respondents are entitled to hle application to recall P.W. 1 and the trial Court has rightly allowed the same and thus, revision petitions are devoid of merits and are liable to be dismissed

11. It is not in dispute that respondents hled suit against the petitioner for eviction in respect of suit schedule property and examination of P.W. 1 and eschewing of his evidence on

26.10.2015, for failing to appear for cross-examination. 6 a respondents to set aside the n of p.W. I and ns and the said

12. Perusal of the record would disclose that filed an application uzde LA.(SR).N o.482 of 2OtS Order datcd 26.LO.2OlS, eschewing examinatio the same was returned by the office with objectio appiication was resubmitted along with the application to condone the delay of 64 days ulde I.A.No.3g of 2016 and the said application was dismissed on 29.O4.2016, as such, respondents filed another application ulde I.A.No.13 6 of 2016, set aside the Order daLed 29 .O4.2O 16 and the same u.as also dismissed on 03'o1 2o17 and no steps $.ere Laken to resubmit the said application and thus, the Order dated 26.10.20i5, eschewing evidence of p.W. t has become final. It is evident from the material on record that suit was dismissed for default and thus, respondents filed an application to restore the same along with an appiication uid.e I.A.No.2O4 of 2OlZ, to condone the delay of 37 days in filing the application and the same was dismissed on 0 1 . O9. 2O 1 Z. Aggrieved by the same, respondents preferred C.R.p.No.7i0 2 of 2OL7 and the same was allowed by this Court by Order dated O4. 12.2O2O and the delay of 37 days in frling the application was set aside and consequenfly, suit was restored. After restoration, respondents filed two applications uide 1.A.No.494 of 2023, to set aside the Order dated 26.10.2015, eschewing evidence of p.W. I and another i w" 1 uide I.A.No'4 95 of 2023 ' to recall P'W' 1 for n and both the applications were allowed by the trial separate Orders daled' 22 '12'2023 ' apPlication examinatio CoutL uide

13. The triai court while allowing the application uide I.A.No.494 of 2023' observed that respondents have not {iled any application seeking the same relief and the same has not been conclusively decided by the trial Court' However' as observed above, respondents have filed an application uide I.A.(SR).No a82 of 20i5 to set aside the Order dated 26 10'2015' by which, the evidence of P'W'1 was eschewed' Therefore' the observation of the triai Court that no application was hled by respondents seeking same relief is factually incorrect and it is evident that the trial Court has not taken into consideration the appiication frled by the respondents uide I'A'(SR)'No'482 of 2O15 and return of said application and dismissal of application filed same and as no steps have been taken to to resubmit the application, the same has become finai' restore the said Therefore,'the Order daLed 26'10'2015' eschewing evidence of P.W.l has become irnal and having suffered by Order dated 26.10.2O ls'respondents cannot hle another application seeking same relief and thus' the Order passed by the trial Court dated t I 8

22.12.2023 in I.A.No.494 of 2023, same is liable to be dismissed. rs unsustainable and tire

14. In view of the above, C.R.p.No.37O of 2024 is allowed and impugned Order dated 22.12.2o23in I.A.No.494 of 2023, is set aside and consequently, i.A.No.494 of 2023, stands dismissed. Since C.R.p.No.370 of 2024 is allowed, C.R.p.No.379 of 2024, is also allowed and impugned orcler datcd 22.72.2023 in LA.No.49S of 2023 is set aside and consequently, t.A.No.495 of 2023, stands dismissed.

15. In the result, these Civil Revision petitions are allowed. There shall be no order as to costs. Miscellaneous petitions pending, if any, shall stand closed SD/- U.SUDHA ASSISTANT REGISTRAR I I //TRUE COPYII SECTION OFFTCER To,

1. The XXI Junior Civil Judge, City Civil Court, at Hyderabad 2. One CC to Sri A. Najeeb Khan, Advocate [OPUC] 3. One CC to Sri Mirza Shah Nawaz Baig, Advocate [OPUC] 4. Two CD Copies VTilPSL HIGH COURT DATED: 07t}BtZO2S -:: -'-.-:- '" t:; ..? ,i'-.n ''" t. aJ,) L) 19 AUC zffi .\ / COMMON ORDER CRP.No.370 and 379 of 2024 oFstr.,;rl ALLOWING BOTH CRP'S