High Court · 2025

...APPELLANT/PETtTtONER/DEFENDANT No.1 Ritesh (umar @ Ritesh Goet, S{o.-Syg_1!9r Kumar Agarwat, aged about 37 years, Occ Business, R/o.H.No.3-6-305/83, Avanthinigar, g'aiieerbagh, - Hyderabad. .?^l_q"[q peepak Agjrrwat,. S/o-.Surender Kumar Agarwat, aged about 34 years, Ucc tsusiness, R/o. H. No.3_6-305/83, Avanthinagar, Baiheerbagh. Hyderabad Devender S._Kimtee, S/o.Late Sampathlal, aged about 76 years, Occ Business, R/o. 1 st Floor, Avanthinagar, aasfr"eernagfr, FIVO'eiiO jO -- Smt. Santostr Kothari, Wo Nirmal Kumar Kothari, aged about 52 years, Occ -- Hou sewife, R/o. H. N o. 6-3-9 07 t 9 1 2, f ne ruest Api'rtm-ents, XiprO-id Line,- Somajiguda, Hyderabad Nirmal Kumar Kothari, S/o. Late_Strjvaraj Kothari, aged about 55 years, occBusiness, R/o.H.No.6-3-907t912,Ti're t'rest npirtments, V rifiiaii r_ane, sgmajiqy$g, Hyderabad.(Respondents 3 to 5 are'noi necessary farties in the above CMA) ...RESPONDENTS/RESPNDENTS No.3 TO 5 /DEFENDANTS 2 TO 4 IA NO:10F 2025 PetitionunderSectionl5lCPCprayingthatinthecircumstancesstatedin the affidavit filed in support of tne petrtion, in" Higl' Court may be pleased to glant final decree proceedings stay of all further proc.eainj. including P?t-t1"9^.of p*lr".t t" tne oecree anoluotment oate-o b+-oz-2022 in o S No 220 of 2017 on the file of the court ot tne iV "nOOitional District Judge' Ranga Reddy District at L.B.Nagar, pending disposal of the above CMA Counsel for the APPellant: SMT. D PADMAVATHI Counsel for the ResPondent No'1 SRI SHYAM S AGRAWAL The Court delivered the following: JUDGMENT THE HONOURABLE SRI JUSTICE T.VINOD KUMAR AND THE HONOURABLE SMT, JUSTICE P.SREE SUDHA CIVIL MISCELLANEOUS APPEAL No .8 of 2o25 JUDGMEN T: (per llon'ble Smt. Justice p.Sree Sudhcl) This Civil Miscellaneous Appeal is filed against the Order dated 17. lO.2024 in I.A.No.423 of 2t,22 in O.S.No.22O ot 2017 passed by the learned IV_Additional District Judge, Ranga Redd1, I)istricL, ar I..B.Nagar.

2. 1'hr-- appellant hc rein / defenclant No.1 has filed an application against the respondenLs herein before the trial court uide l.A.N<l.423 of 2022 in O.S.No.22O ol 2OlZ, under Orclcr 9 rule 13 R/ w. Sccl.ion 15 1 cif CpC, lor setting aside the ex-pat1e decrec dated 04.O2.2O22 passed in O.S.No.22 O ol 2OI7 . The trial Court after considering the arguments of both sides rlismissed rhr applicarion. Aggrievcd by the said Order, appeiJant has prel'erred the prcsenI Civil Miscellaneous Appeal.

3. Learned Counsel for the appellant mainly contended that the trial Court ought to have taken liberal approach for sulficient cause and allowed the application under Order 9 rule 13 CPC, as per the citation reported in (2OOO) 3 SCC 54 in the case of G.p.Srtaasthqaa Vs.R.K,Raizad.a. Summons were not \ I , I I l ! l i I I I I I I 2 served upon the appellant till he received notices in LA.No.321 ol 2022 and it is the sufficient cause to set aside Lhe ex porte decree. Appellant is having substantial right over the suit schedule properry, as such ex-parte dccree cannot be passed in a suit for partition. Thereforc, requcstcd thc Court Lo sct asidc the ex-parte decree passed by the trial Court.

4. Parties herein are referred as appellant/ defendanL No.1, respondents No. 1 and 2/ ptaintiffs and respondcuts No.3 1o S/defendants No.2 to 4, as arrayed beforc the trial Court in O.S.No.220 ol 2Ol7 , for the sake of convenience.

5. Plaintiffs filed the suil uide O.S.No.220 of 2017, againsl the defendants for partition, separate possession and declaration. It is stated in thc suit that piaintrffs and dcfer-rdant No.1 are closely related to each other. The father of plaintiffs and the father of defendant No.1 are rcal brothers. It seems that plaintiffs and defendant No.1 purchased the suit schedulc property together. Howevcr, defendants No.3 and 4 havc filed a suit for specihc performance against the suit B-Schedule property. Defendant No.1 executed an agreement of sale in favour of defendants No.3 and 4. It is also admitted by the plaintiffs that defendant No.1 was in physical possession of the original documents with respect to the suit A, B and C Schedule i i i I l i I I I I I I I J properties and rcquestcd for 173.a share in the suit schedure property and also to declare the agreement of sale as null and void and noL binding on them.

6. specifically observed In the Judgment dated 04.O2.2022, passed in O.S.No.220 ol 2017, the trial Court observed that defendant No.2 had also filed a suit ulde O.S.No.74l of 2015, for specific performance of contract, against Lhe ptaintiffs and defendant No.1. It was that in spite of service of summons, clefendant No.1 dict not choose to appear before the Court and hence he was set ex-patte on 2O.O4.2017. Though the defendant No.2 made his appearance by engaging an Advocate, he did not choose to file the written statement and thus he was set ex_ par|e on 27.lO.2OlZ. l.hc defendants No.3 and 4 filed their written statement, but the suit against dcfendants No.3 and 4 was not presscd, as the Counsel for the plaintiffs filed a memo, not pressing the suit against defendants No.3 and 4. The trial Court partly decreed preliminarily partitioning the suit schedule A, B and C properties into three equal shares and allotted 1/3rd share each to plaintiffs and defendant No. I . 7 LA.No.423 of 2022 in O.S.No.22O of 20tZ was hled by the defendant No. 1 to set aside Lhe ex_parte decree passed in O.S.No.22O of 20lZ. Defendant No.1 stated that he received I I , 4 notices in I.A.Nos.312 and 322 of 2022, through registered post ot't 20.O5.2022 and copies of the said application through Court on 14.06.2022, Lhen only he came Lo know about the filing ol the suit agalnst him. Later, he approached the Counscl and found that plaintiffs have obtained tlne ex-patle decree againsl him on O4.o2.2o22. He also stated that plaintiffs manipulated the acknowledgment card showing service o[ summons to him througl-r post and thus he q,as set ex patle on 24.04.2017 . As |tt.- has not received any summons, he has no knolr'ledge of thc filing ol the suit and his non appearance was neiLher intentional nor wanton. The suit schedule properties are the joint family properties, therefore requested the Court to set aside the ex- panle decree.

8. In the counter hled by the plaintiffs in LA.No-423 of 2022, they stated that notices sent to defcrrdant No.1 were served upon l-rim, but he remained absent. Delendants No.3 and 4 contested the matter and defendant No.2 reccived thc notice and appeared before the Court, but later he did not pursue the mat[er. Therefore, his contention that ackno.,r'ledgments arc manipulated is false. In spite of service of notices, hc did not appear on 24.04.2077, aq such he was set ex parte. When they filed I.A.Nos.321 and 322 of 2022, for passing of tl-re final decree 5 and for appointmenc of advocate commissioner, defendant No.1 filed the application for setting aside the ex_parte decree. The trial Court also directed the defendant No.1 to deliver the original title deeds regarding suit A, B and c Schedule properties. As defendant No.l suppressed the real facts, requested the Court to dismiss the application. t-,

9. The trial Court considering the arguments of. both side s, o bserved that as per ttrc docket orders, summons were served upon defendant No.1 and he q,as absent. It was also observed that it was not his casc that he rvas nor residing in the address acknowledged by the court ancl he had not filed any document Lo show the same. As per Section 2z of the General clauses Act, if the summons are sen t to the correct address, it is deemed to be served upon him. Defendant No.l was set ex_parte on 2O.O4.2O).T and he filecl the application for setting aside the same in the year 2022 ancl with the said observation, dismissed the said application. I I

10. Perusal of the suit shows that defendanL No.1 was residing in the first floor of same residential building. Therefore, his contention that he did not know about the pendency of the suit cannot be accepted. Moreover, as per the docket proceedings, summons were served upon the del.endant No. 1. I I \ \ 6 Even after service of summons, he did not appear beforc thc Court and thus he was set ex-parte. Though defendant No 2 appeared before the Court, he did not file writtcn statement and remained ex-parte. The case against defendants No 3 and 4 was not presscd. The learned Counsel for the respor-rdents staLed that notices were served upon defendant No 1 ir-r I A'Nos'321 and 322 of 2022. This clearly shor, 's thal the trial Cortrl considered all the aspects and rightly dismisscd rl.re application and lhis Court llnds no reason to interfere r'vith tl're sald Order' 1 1. In lhc rcsult, thc pre sent Civil Miscellancous Appe al is devoicl of merits and is dismissed by confirming thc Order of thc trial Court in I.A.No.423 of 2022 in O S No'220 of 20 17' clated 17 .1,O.2024. There shall be no order as to costs Miscellaneous petitions pending, if anr" shall stancl closed Sd/- K.SHYLESI JOINT REGISTRAR //TRUE COPY// \ i I \ To, SECTION OFFICER t

1. The lV Additional District Judge, Ranga Reddy District at L.B.Nagar 2. One CC to SIVT. D PADMAVATHI Advocate IOPUC] 3 One CC to SRl. SHYAM S AGRAWAL Advocate IOPUC]

4. Two CD Copies TPK/PSL +,PL HIGH COURT DATED:2410412025 JUDGMENT CMA.No.8 of 2025 ,,a Si.;.,_,: 16 sEP zffi t, t a ;,.1T c Liet) CIVIL MISCELLANEOUS APPEAL IS DISMISSED b