Farruq Jalal v. M/s. Sheesh Mahal Enterprises (P) Ltd

Counsel for the Petitioner: Sri Venkatesh Deshpande Counsel for the Respondent No. 1: Sri D. Jagan Mohan Re< r y The Court made the following: COMMON ORDER 7t THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA CML REVISION PETITION NOs.1628 and 1664 of 2OL9 COMMON ORDER: C.R.P.No. 1628 of 2Ol9 is liled by the revirion petitioner/ defenciant No.2 aggrieved by the order, dated O9.04.2019 passed by the learned XXV Additional Chiel Judge, City Civil Court at Hyderabad in I.A.No. L527 of 2018 in I.A.No 549 of 20i5 in O.S.No.331 of 20 15, wherein and whereby an application hled under Order [X Rule 7 read with Section 15 i of C.P.C. to set aside the ex parte order, dated 26.02.2018 and also to permit the revision petitioner to {-rle counter in LA.No.549 of 2015 was dismissed.

2. C.R.P.No. 1664 of 2079 is filed by . the revision petitioner/defendant No.2 aggrieved by the order, dated O9.04.2O19 passed by the learned XXV Additional Chief Judge City Civil Court at Hyderabad in I.A.No.1528 of 2O18 in O.S.No.331 of 2O15 wherein and whereby an application Iiled under Order IX Rule 7 read with Section 151 ol C.P.C. to set aside the ex parte order, dated

04.12.2O17 passed against him in the suit was dismissed.

3. Since the issues involved in both the Civil Revision Petitions are interconnected, they are being disposed of by ttris common order.

4. Brief facts of the case are that the revision petitioner herein is defendant No.2 and \ \ respondent No. I herein is the plaintiff and I I I I ) NNI{.' (rp -i628 anrl 1664 2019 respondent No.2 herein is defendant No.1 in the s rit. Respondent No. 1/plaintiff filed the above suit seeking to cancel 1 -re judgment and decree in O.S.No.98 of 2017 passed by the III Additi ,nal Chie I Judge, Ciry Civil Courts, Hyderabad on the ground tha the same was frauduiently obtained by defendant Nos. I and -t on the basis of forged and fabricated agreement of sale, dated 3(. )3.2006 and five fabricated and forged receipts, dated 3O.O3.2C )6, 17.05.2006,

22.06.2006, 08.08.2006 and 10.09.2O06 ancl cor: .-quently, prayed to cancel the registered sale deed bearing docu: rent No.2O38 of 2OO9, dated 2l.ll.2OO9 which rvas executed by lh Court in favour of defendant Nos. I and 2 in E.P.No.23 of 2OO9.

5. It is submitted by the learned counsel lor the revision petitioner that the revision petitioner was servecl vith the notice in the said suit and hc cngagcd ;r counsel, rvho filecl Val<alat on

05.10.2015 and though the written statement orr 1ht to h:rve been filed within 90 days from the date of receipt o[ I le summons, no written statement was filed ttll O4.12.2OL7 i.e. lr a period of two years. Inspite of granting sufhcient time, the rev : ion petitioner did not chose to file the written statement and the Ie rrned trial Judge made him ex porte in the suit on A4.12.2O17 art in I.A.No.549 of 2O15 on 26.O2.2O1a. Hence, seeking to set asid,: the satd ex parte orders, applications under Order IX Rule 7 read r,'th Section 151 of .r/ t z,l .;37, I NNR.J ctp 16 and7664 2019 C.P.C. were hled by the revision pedtioner witlrin six months lrom the date of ex parte orders. It is further admitted t-hat summons were served on the revision petitioner and he had engaged his counsel to rlefend his case. The main contention of the revision petitioner for not appearing before the trial Court was that his counsel was unwell for a period of two years and he could not get any information from his counsel though his counsel is said to have instructed that he would be inlormed about the status of the case and seeks his presence as and when required. Believing his words, the revision petitioner did not choose to pursue or follow up the matter and later on in the month of April, 20 18 when he had approached his counsel, he came to know that he was set ex parte in the suit as vrell as in the injunction petition, counsel had returned his brief and as such, the petitioner engaged a new counsel and filed petitions seeking to set aside the ex parte orders.

6. The facts are similar in both the revision petitions and I.A.s and ex parte orders were sought to be set aside on the similar grounds. 7 . As seen from the impugned orders, initially there was no objection reported by the learned counsel for respondent No.l/plaintiff for allowing the said applications. Though no order was passed basing on the "no objection" reported, as no written 4 N.NR,J crp 1628 anJ 1661-201,9 statement was filed the revision petilioner, on th: oral direction of the leamed Judge, the revision petitioner has iled the written statement and subsequently, the concession, whiclt u'as extended by respondent No.l/plaintiff reportii-rg "nc cbjection" 'r as rvithdrawn on the ground that the same was given without instrui ions of his client and that his client is not inclined to extend the ; rd concession o[ reporting "no objection" for allowing said applicatior ;-

8. As no order was passed basing on the 'eporting of 'no objection" by learned counsel for respondent No. t ' Plaintiff, it has lost its relevance and needs no further discussion o L the same.

9. Considering the reasons cited and disbelievi rg the version of the revision petitioner/defendant No.2, the learne:l trial Court came to the conclusion that the reasons cited by the rer r' ion petihoner are not convincing as the revision petitioner has not placed any substantial reason for not hling the written stat. nent within time and it is not permissible to allow the revision petitlr ner to file written statement beyond 9O days. It is lurther conclurl, cl that defendant No.1 is no more and the revision petitioner is defen lant No.2 and the plaintiff file a memo stating that defendant No.2 is; 1're only legal heir of defendant No. 1. Except filing memo, the plaintit did not take any efforts to bring the sarne on record and necessarl, Lmendments were not made in the plaint. In such circumstances, as defendant No.2 is \ -"? ./t /, i NN&I crp_1628 and 1664_2019 the legal heir of defendant No. 1, notice was issued to him Accordingly, the Interlocutory Applications were dismissed.

10. Being aggrieved by the said 6rders, the present Civil Revision Petitions have been ir.cd bv the revision petitiqner/ defendant No.2 contending that the learned Judge did not consider the reasons for non-filing of the written statement by the revision petitioner and made a go by to the legal proposition that the petitions for setting aside the ex porte orders should be liberally construed and the Courts should not adopt a hyper technical vieu'. The learned trial Judge ought to have allowed the petitions on two grounds, Iirstly the revision petitioner had alrearly filed his written statement and secondly respondent No. 1/plaintiff had initially given no objection for allowing the petitions and subsequently withdrawn the same. It is further stated that no hardship would be caused to respondent No.1/plaintiff if the petitions are allowed.

11. Having heard Sri Venkatesh Deshmukh, learned counsel for the Revision Petitioner/ defendant No.2 and Sri D.Jagan Mohan Reddy, learned counsel for respondent No. 1/ plaintiff and having perused the material on record the foilowing points arise for consideration before this Court: "1. Whether the reasons cited by the petitioner can be taken as sufflq)nt cause for non-appearance of the petitioner/ defendant No. 1 on the relevant date? 6 NNR,] :rp_l628 and 16&-2019

2. Wherher the trial Court has rightly dismi ; ,ed the petitions or not, if so, to q,hat relieP

12. Point Nos.1 and 2: - It is an admitted fact that the revisir':r petrt:)ner herein was having knowledge of the suit as he had received ti e summons and he also engaged a counsel, who hled Vakalat on ris behalf. It is clearly borne out from the record that the revisir r petitioner was given an ample opportunity for filing the writ r n statement by extending the time beyond 9O days and was grar t :d time for filing the written statement for about two years ie. till O + 12.')017. though thc appearance rvas made on 05. 10.2015. As the rr:titioner did not chose to ftle the written statement by 04.12.2017, t rc petitioncr was sct ex parte by the learned Judge. Though it is , ontended by the learned counsel for the petitioner that, in all prob: rilities, s'hen the v"ritten statement is not filed by defendant No- 2 . the le arned trial Judge ought to have forfeited the right to file the uritten statement no such order is passed but ex parte orders wert passed. Learned counsel lor the petitioner further contended that, 1: non-appearance of the revision petitioner, he has a valid reason r:iat he couid not follow the suit proceedings as he relied upon the nstructions given by his counsel that he would be informed as and rhen his presence is required. I I ./. 7 NNR.J crp 1628 and.76(A 2079

13. It is also further contended by the learned counsel for the revision petitioner that, when he contacted his counsel, his counsel informed to him that he could not represent the matter on the ground of his ill health, which made the revision petitioner to engage another counsel and filed the applications. Learned counsel further contended that the Courts should not adopt hyper technical view while disposing of the applications filed to set aside the ex parte orders and the said applications should be considered liberally. He further contended that the very suit filed by the plaintiff questioning the ex parte judgment and decree passcd in O.S.No.98 of 20O7 on the file of the III Additional Chie Judge, Citli Civil Courts, Hyderabad ancl also sought for cancellation of the registered sale deed bearing document No.2O38 of 2009, which was executed in favour of the revision petitioner/defendant No. I in E.P.No.23 of 2OO9.

14. He further contended that, if the petitioner is not permitted to participate in the suit, it would cause great loss and hardship to him. He further contended that his non-participation in the suit proceedings is only due to his counsel's illness and it is not I intentional.

15. karned counsel for respondent No.1/plaintiff has vehemently contended that the learned Judge has considered the entire material \ ".- and also seen the conduct of the revision petitioner/ defendant No.2 8 NNR,J .rp 1628 and 1664 2Ol9 for non-filing of the written statement for a period r tr,,"o years. The reasons which are cited by the revision petitioner c,l rnol he accepted for the reason that no substantial material ha; bcen placed to suppcrt hi: c.-,11s11161 that his counsel was sic!,. Admitredly, n,,r such material is placed either before the trial Cor rt or before this Court. To substantiate his contention, learned cc rnsel also relied upon the judgment of the Honble Apex Court irr l,{itin Mahadeo Jawale and. others a. Bhaskar Mq.had.eo Muil,:el, wherein the Apex Court held as under:- "7. Even if we assume for a moment that the concerra I laGyer rvas careless or negligent, this, by itself, cannot be a ground r r condone lorg and inordinatc delay as the litigant owes a duty to be vig l, nt of his o\\'n rights and is expected to be equally vigilant about the judi,:i I proceedings pcnding the Court initiated at his instance.

8. The litigant, therefore, should not be permitted to t r )!v thc entirr blame on the head of the advocate and thereby disown him r rnv time ard seek relief."

16. Relying upon the said judgment, lear r cd counscl for respondent No.1/plaintiff has contended that nou' :here is a regular practice among the litigarrts that to blame the co rnsel anrl file the applications for setting set aside t!i,e ex parte ct lers by engaging another counsel. He supported the order passed : r the learned trial Judge and prayed this Court to dismiss the suit. 1 2024 SCC Online SC 3468 I I 9 N.N&J crp_I628 and 164_2019

17. As seen from the record, admittedly the revision petitioner hled the $'ritten statement on 18.09.2O18 and the same has been lyir,g in the record of the trial Court. The applications ',r,hich are hled by the revision petitioner and reasons cited for setting aside tlr.e ex parte orders are that due to illness of his counsel, the matter could not be represented during the said period. Though no material is placed, it is the case of the petitioner that immediately after the same was brought to his notice, the revision petitioner engaged another counsel and hled the present appiications citing the above reasons.

18. No doubt, as on today the communication to the titigants is very convenient and latest status of the case can be known by the litigants / parties by browsing into the e-courts. In spite of the same, the revision petitioner did not choose to take such recourse and he has blindly depended upon his counsel. The judgments cited by the learned counsel for respondent No.1/plaintiff can be distinguished for the reason that the facts therein and the facts in the present cases are on different footing. In the present case the illness of the counsel was ttre reason cited' by the revision petitioner. The petitioner is also have an obligation to pursue his own rights and he should be more vigilant in pursuing his case. 19 . The revi,sion petitioner herein is the legal representative of !t' defendant th.a *ho came on record in the said suit as defendant 10 NNRJ crp 1 628 and 164-2019 No.2 being one of [he legatees of defendant No. 1, '.v r ; is no more and ln the place of defendant No.l, as legatee of lefendant No.1, delendant No.2 came on record and it is reportecl .hat he has also fited the writter sLatement in the capacity of legz -ee of defendant No. 1

20. It is also the case of the revision petitione' that defendant No. t has relinquished his rights over the property in lavour of the revision petitioner/ defendant No.2, for all practic r1 purposes, the revision petitioner/ defendant No.2 is already partit:i rating in the suit as a legatee of defe ndant No. I and even if the re.' sion petitioner is permitted to procecd in the suit, no prejudice u r rld be cirused tcr respondent No. 1 / plaintiff. But, considering the conduct of the revision petitioner in pursuing his rights before t re Courts and to give a fair chance lo the revision petitioner/ defend r rt No.2 t() contest the suit as his written statement has also becamr rart of the record and to bring the entire litigation to a logical end, th s Court I'eels that an opportunity should be given to the revi,;;n petitioner to participate in the suit, however, considering the Jrr ejudice caused to respondent No. i /plaintiff in view of the delay in ! Le proceedings by compensating the same imposing certain cost s on the revision petitioner. Accordingly, point Nos.1 and 2 are ans,rered. ,/ 11 NNR,J crp 1628 and 1664_2019

21. For the aforesaid reasons. both the Civil Revision Petitions are allowed setting aside the order, dated 09.04.2019 passed in I.A.No.1527 of 20lB in I.A.No 549 of 2015 in O.S.No.33 I ol 2O15 and the order, dated 09.04.2019 passed in I.A.No. I528 of 2O18 in O.S.No.33i of 2O15 by the learned XXV Additional Chief Judge, Cily Civil Court at Hyderabad. Thereby, l.A.Nos. 1527 and 1528 of 2018 are allowed subject to payment of costs of Rs.25,000/- in each application payable by the revision petitioner to respondent No. 1/plaintiff within a period of one month from today, failing which, both the Civil Revision Petitions shall stand dismissed Miscellaneous applications, if any, pending shall stand closed //TRUE COPY// SD/. A.V.S.PRASAD PUTY REGIS ON OFFICER To, ViI 1 ) 3 4 The XXV Additional Chief Judge, City Civil Court, at One CC to Sri Venkatesh Deshpande, Advocate [OP One CC to Sri D. Jagan Mohan Reddy, Advocate [OP Two CD Copies yd rabad NOTE : Total Amount of Rs. 50,0001 (Rupees Fifty thousand only ) has been paid by Sri Venkatesh Deshpande, Counsel for the Petitioner as directed by the Hon'ble Court vide order dated 15.09.2025 as Rs. 25,000/- each (Rupees Twenty Five thousand only each) to M/s. Sheesh lvlahal Enterprises Private Limited, Hyderabad and filed Memo as proof of compliance vide USR Nos. 114322 of 2025 and 114323 oI 2025, dated 15-10-2025 bearing DD Nos.812930 and 812931 respectively. Vv HIGH COURT DATED:1 510912A25 COMMON ORDER CRP.No.1628 & 1664 of 2019 ;;=:I\ ,1/- ./'.-, :.) s.,) ") l (l t i 1t Erc &t '(.n ALLOWING BOTH CRP'S \o*e x,# I