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Telangana High Court
Sri. Narahari Srinivas vs Sri. Gujja Prakash on 31 July, 2025
THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
CIVIL REVISION PETITION NO.1782 OF 2025
ORDER
This Civil Revision Petition is filed against the order of the trial
Court, i.e., Additional Junior Civil Judge at Gajwel dt.12.02.2025 in
I.A.No.422 of 2023 in O.S.No.295 of 2022 setting aside the ex parte
decree passed on 09.11.2022 by condoning the delay of 255 days on
payment of costs of Rs.5,000/- to the opposite party and further
directing the petitioners therein/defendants in the suit to file the written
statement within one week from the date of the order.
2. Brief facts of the case are that the petitioner herein is the plaintiff
and has filed the suit O.S.No.295 of 2022 for permanent injunction
against the defendants therein along I.A.No.95 of 2022 for ad interim
injunction. Vide orders dt.08.06.2022, the trial Court granted ad interim
injunction. Subsequently, as the defendants did not turn up in spite of
service of notices, they were set ex parte and ex parte judgment and
decree were passed on 09.11.2022. But, when the judgment debtors tried
to interfere with the possession of the plaintiff over the suit schedule
property, the petitioner approached the police for action. But the police
C.R.P.No.1782 of 2025
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did not initiate any action on the ground that the matter is civil in nature.
Therefore, the plaintiff filed E.P.No.7 of 2023 to protect his rights over
the property. The petitioner also filed E.A.No.2 of 2023 for police
protection. At this juncture also, when notices were sent to the
defendants/judgment debtors and were served on 27.03.2023, they
refused to receive them and therefore, the defendants were set ex parte
and after examining the witnesses on behalf of the plaintiff, the trial
Court held that the judgment debtors 1 to 3 have violated the decree
passed in favour of the decree holder. Thus, the EP was allowed and it
was held that the judgment debtors 1 to 3 are liable for the civil
imprisonment for 15 days. Thus, warrant was issued to the judgment
debtors and consequently on 13.07.2023, the defendants were produced
before the Court, they have given an undertaking that they will obey the
Court orders. Thereafter, the defendants filed I.A.No.422 of 2023 under
Section 5 of the Limitation Act read with Section 151 of CPC for
condoning the delay of 255 days in filing the petition to set aside the ex
parte decree dt.09.11.2022 and also to set aside the ex parte decree. The
trial Court has allowed the same subject to payment of costs of
Rs.5,000/- to be paid to the opposite party and aggrieved, the plaintiff
has filed the present Civil Revision Petition.
C.R.P.No.1782 of 2025
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3. Learned counsel or the petitioner submitted that the defendants
were very much aware of the pendency of the suit when the notices were
served on them in the suit, but they chose not to appear before the Court
and therefore, ex parte judgment and decree dt.09.11.2022 were passed
and even in the E.P., when the notices were sent, they have refused to
take the same and hence, they were set ex parte in the EP also and for
trespassing into the petitioner’s land, arrest warrant was issued. It is
submitted that the judgment debtors thereafter have given an
undertaking that they would not interfere with the possession of the
plaintiff over the suit schedule property and therefore, they are
precluded from filing the present I.A.No.422 of 2023. He submitted that
the trial Court ought not to have condoned the delay of 255 days and
ought not to have set aside the ex parte decree. He placed reliance upon
the following decisions in support of his contention that when there is a
wilful breach of the undertaking given by the defendants, it amounts to
contempt of Court and the delay ought not to be condoned and ex parte
decree ought not to have been set aside.
C.R.P.No.1782 of 2025
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(1) State of Maharashtra and others Vs. Shri Vithu Kalya Govari
and others 1.
(2) Suman Chadha and another Vs. Central Bank of India 2.
(3) Basawaraj and another Vs. Special Land Acquisition Officer 3.
(4) Pathapati Subba Reddy (Died) by L.Rs. and others Vs. The
Special Deputy Collector (LA) 4.
(5) M.Ponnupandian Vs. Selvabakiyam and others 5.
(6) Sardar Vallabhbhai Patel Smarak Trust Vs. Samarth
Nangia6.
(7) Devi Dass Vs. M/s. Ginni Global Pvt. Ltd. and another 7.
It is submitted that the trial Court has passed the order in a mechanical
way and without application of mind and therefore, it is liable to be set
aside.
1
AIR 2009 (NOC) 1008 (Bom.)
2
AIR 2021 SC 3709
3
(2013) 14 SCC 81
4
Special Leave Petition (Civil) No.31248 of 2018 dt.08.04.2024
5
AIR 2004 Madras 272
6
2011 LawSuit(Del) 206
7
2025:HHC:20743 = CMPMO No.305 of 2022 dt.01.07.2025 of High Court of Himachal Pradesh,
Shimla
C.R.P.No.1782 of 2025
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4. Learned counsel for the respondents, on the other hand, submitted
that the respondents/defendants were illiterates and were not aware of
the consequences of not attending the Court and therefore, they
remained absent and the suit was decreed ex parte on 09.11.2022. It is
submitted that the defendants were not aware of the proceedings
pending before the Court even in E.P. and only when arrest warrant was
issued and they were produced before the Court, they came to know
about the ex parte decree and gave an undertaking that they would not
interfere with the possession of the plaintiff over the suit schedule
property. It is submitted that only when they approached the counsel at
Gajwel, they were advised to file a petition to set aside the ex parte
judgment and decree and therefore, they filed the application for
condonation of the delay and for setting aside the ex parte decree. It is
submitted that they have paid the costs of Rs.5,000/- as directed by the
trial Court to the plaintiff on 02.04.2025 and having accepted the costs,
the plaintiff is precluded from filing this Civil Revision Petition. The
learned counsel for the respondents relied upon the following judgments
in support of their contentions.
C.R.P.No.1782 of 2025
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(i) Bharat Karla Vs. Raj Kishan Chabra 8.
(ii) Ganamaina Kanakaiah Vs. Ganamaina Prasad and
others9.
(iii) Mewa Singh Vs. Brahma Nand 10.
(iv) Sohan Lal Vs. Dhari Mal-Ishar Das 11.
(v) M.K.Prasad Vs. P.Arumugam12.
(vi) Vikramaditya Bhartia Vs. DDA 13
5. Learned counsel for the petitioner, however, submitted that the
costs was not paid by the defendants within the time granted by the trial
Court and that the petitioner has accepted the same only under protest
and therefore, the same cannot be considered as acceptance by the
petitioner.
6. Having regard to the rival contentions and the material on record,
this Court finds that the issue before this Court is whether the delay of
255 days can be condoned and whether the reasons given by the
8
2022 LawSuit(SC) 684
9
CRP No.6720 of 2018 dt.15.03.2024 of High Court for the State of Telangana at Hyderabad
10
1972 LawSuit(P&H) 9
11
AIR 1928 Lahore 813(2)
12
AIR 2001 SC 2497
13
2011 SC OnLine Del 3761
C.R.P.No.1782 of 2025
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defendants for non-appearance before the Court when the notices were
issued and served on them in the suit as well as in the EP are acceptable
and are justified particularly in view of the undertaking given by them
before the trial Court that they would not interfere with the possession of
the petitioner/plaintiff over the suit schedule property.
7. In the case of Suman Chadha and another Vs. Central Bank of
India (2 supra), the Hon’ble Supreme Court was considering the case of
civil Contempt for wilful and deliberate breach of the undertaking given
by the contemnors. However, the facts of the said case are
distinguishable and therefore, the said judgment is not applicable to the
case on hand ipso facto.
8. In the case of Basawaraj and another Vs. Special Land
Acquisition Officer (3 supra), where the issue is with regard to
condonation of delay, it was held that discretion to condone delay has to
be exercised judiciously based on facts and circumstances of each case
and sufficient cause cannot be liberally interpreted if negligence,
inaction or lack of bona fides is attributed to the party and even though
limitation may harshly affect rights of a party, it has to be applied with
all its rigour when prescribed by statute.
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9. In the case of Pathapati Subba Reddy (Died) by L.Rs. and
others Vs. The Special Deputy Collector (LA) (4 supra), the Hon’ble
Supreme Court after considering various decisions on the subject, has
culled out the law laid down on the condonation of delay as under:
“26. On a harmonious consideration of the provisions of the law, as
aforesaid, and the law laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy that there
should be an end to litigation by forfeiting the right to remedy
rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed
of for a long time must come to an end or cease to exist after
a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed
differently, such as Section 3 has to be construed in a strict
sense whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal
approach, justice-oriented approach or cause of substantial
justice may be kept in mind but the same cannot be used to
defeat the substantial law of limitation contained in Section
3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the
delay if sufficient cause had been explained, but that exercise
of power is discretionary in nature and may not be exercised
even if sufficient cause is established for various factors such
C.R.P.No.1782 of 2025
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as, where there is inordinate delay, negligence and want of
due diligence;
(vi) Merely some persons obtained relief in similar matter, it does
not mean that others are also entitled to the same benefit if
the court is not satisfied with the cause shown for the delay in
filing the appeal;
(vii) Merits of the case are not required to be considered in
condoning the delay; and
(viii) Delay condonation application has to be decided on the
parameters laid down for condoning the delay and
condoning the delay for the reason that the conditions have
been imposed, tantamounts to disregarding the statutory
provision.”
The other decisions relied upon by the learned counsel for the petitioner
are also to this effect.
10. Learned counsel for the respondents has relied upon the decision
of this Court in the case of Ganamaina Kanakaiah Vs. Ganamaina
Prasad and others (9 supra), wherein the delay of 1240 in preferring
the appeal against the judgment and decree of the trial Court was
condoned. However, on going through the facts of the said case, this
Court finds that the facts and circumstances are not similar and
therefore, the said decision is not applicable.
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11. In the case of Bharat Karla Vs. Raj Kishan Chabra (8 supra),
the delay in filing the written statement therein was 193 days and the
Court has held that the time limit for filing of the written statement
under Order 8 Rule 1 of CPC is not mandatory. Therefore, the said
judgment is also not applicable to this case.
12. In the case of Mewa Singh Vs. Brahma Nand (10 supra), the
Hon’ble Supreme Court was considering the case of amendment of
plaint under the provisions of Order 6 Rule 17 of CPC and not with
regard to condonation of delay. However, the respondents are relying
upon the observation therein that after accepting the costs made by
them, the petitioner is estopped from questioning the impugned order.
However, in this case, the petitioner has submitted that he has accepted
the costs only under protest and therefore, the said judgment would not
be applicable to the case on hand.
13. In the case of Sohan Lal Vs. Dhari Mal-Ishar Das (11 supra),
the judgment in the case of Mewa Singh Vs. Brahma Nand (10 supra)
was referred to but the facts and circumstances are not similar and
therefore, the said judgment is not applicable.
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14. In the case of M.K.Prasad Vs. P.Arumugam (12 supra), the
Hon’ble Supreme Court was considering the case of setting aside of the
ex parte decree and judgment and condonation of the delay in filing the
application for setting aside the ex parte decree. After observing that the
petitioner therein has come to know about the passing of the decree only
when he received the notice for execution proceedings initiated by the
respondent in Execution Petition, the delay was condoned. Further, the
other judgment relied upon by the respondents is in the case of
Vikramaditya Bhartia Vs. DDA (13 supra), wherein it was held that
acceptance of costs amounts to acceptance of the order as correct and
having taken benefit of one part of the order, a party cannot turn around
and say that he will also challenge the order. It was further observed that
the litigant cannot be allowed to approbate and reprobate. However, in
the present case, it is noticed that the defendants remained ex parte not
only during the suit, but also during the EP proceedings. They appeared
before the Court only when arrest warrant was issued to them and they
have also given an undertaking that they would not interfere with the
possession of petitioner’s property. Having given the undertaking, it is
not open to the defendants to again file the application for setting aside
of the ex parte decree unless bona fides of their non-appearance are
C.R.P.No.1782 of 2025
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proved before the Court. The respondents have not filed any evidence
before the trial Court to submit that the notices were not served on them.
The only plea taken by them is that they are uneducated and were not
aware of the repercussions of non-appearance before the Court. Such a
plea cannot be accepted and the trial Court ought not to have condoned
the delay and set aside the ex parte decree on payment of costs of
Rs.5,000/- only. The acceptance of the costs by the plaintiff is under
protest and that too the payment is made after the period allowed by the
Court and therefore, it cannot be considered as acquiescence on the part
of the plaintiff.
15. The Civil Revision Petition is accordingly allowed and the
impugned order dt.12.02.2025 is set aside and the petition in I.A.No.422
of 2023 in O.S.No.295 of 2022 on the file of the Additional Junior Civil
Judge at Gawwel stands dismissed.
16. Pending miscellaneous petitions, if any, in this Civil Revision
Petition shall stand closed.
___________________________
JUSTICE T. MADHAVI DEVI
Date: 31.07.2025
Svv
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