AI Structured Summary
Not yet generated for this judgment
Judgment
C.R.P.No.2835 of 2019 is filed against the order dated 17.04.2019 passed in I.A.No.560 of 2016 in O.S.No.36 of 2015 on the file of the learned II Additional District Judge, Nalgonda at Suryapet, whereby the application under Order 9 Rule 7 CPC filed by the second defendant was dismissed.
C.R.P.No.2898 of 2019 is filed against the order dated 17.04.2019 passed in I.A.No.208 of 2016 in I.A.No.986 of 2016 in O.S.No.36 of 2015 on the file of the learned II Additional District Judge, Nalgonda at Suryapet, whereby the application under Order 9 Rule 7 CPC filed by the second defendant was dismissed.
C.R.P.No.2901 of 2019 is filed against the order dated 17.04.2019 passed in I.A.No.209 of 2016 in O.S.No.36 of 2015 on the file of the learned II Additional District Judge, Nalgonda at Suryapet, whereby the application under Rule 32 CRP filed by the second defendant was dismissed.
The petitioner herein is the second defendant and the respondents herein are the plaintiff and first defendant in all the above applications.
I.A.No.209 of 2016 in O.S.No.36 of 2015 is filed by one Thatikonda Phani Priyanka, represented by her General Power of Attorney holder Irukulla Chennakeshava Rao-petitioner herein. The GPA holder filed the above application under Rule 32 CRP read with Section 151 CPC seeking to permit him to conduct the case on behalf of the second defendant and to file written statement and the said application was dismissed by the trial Court. In the affidavit filed along with the application he submitted that the petitioner herein is residing at Dubai from the last six years. The first respondent-plaintiff filed I.A.No.986 of 2016 in the suit seeking to restrain the petitioner from alienating the petition schedule property in which notices were ordered to the petitioner and second respondent-first defendant in the suit. While serving the notices the plaintiff managed the process server and created record that as if the notice was served upon the petitioner though she was residing at Dubai and that the address mentioned in the cause title is not correct. The Court below basing on the service of notice, set her ex parte on 27.01.2016 in the injunction application and on 10.03.2016 in the suit. She would submit that she came to Kodad in February and came to know about the suit filed by the first respondent and ex parte order was passed in the suit. She would also submit that in view of her pre-occupation, she executed GPA in favour of Irukulla Chenna Keshawa Rao to prosecute the proceedings in the suit vide Document No.6 of 2016 and by virtue of the GPA the GPA Holder filed a separate application under Rule 31 of CRP to permit him to conduct defence through GPA holder and has taken steps by filing I.A.No.209 of 2016 in the suit under Order 9 Rule 7 CPC to set aside the ex parte order dated 27.01.2016 passed in I.A.No.986 of 2016, but the trial Court without considering the facts and without asking proper reasons, dismissed the application and requested this Court to set aside the same.
In a counter filed by the first respondent-Nagarappa Mahesh he contended that the present application is not maintainable and Irukulla Chenna Keshawa Rao has no locus standi to file the application. He further stated that the petitioner herein is not residing in Dubai from the last six years and she is very much present in Kodad during 20.02.2016 and as such she could file the application directly before the Court. The alleged GPA executed by the petitioner is not valid and cannot be looked into and that she has not filed any record to show that she is an employee at Dubai and has been residing in Dubai. There are no valid grounds to appoint the GPA Holder and he is not entitled to file counter or written statement or to give evidence on behalf of the petitioner, and therefore, requested the Court to dismiss the application.
The plaintiff filed a suit for specific performance against Velishala Murahari-first defendant and Thatikonda Phani Priyanka-second defendant seeking to declare that the sale deed bearing Document No.1410 of 2015 dated 16.03.2015 is not binding on him.
In the written statement filed by the second defendant she stated that she has no acquaintance with the plaintiff and she is a married woman residing with her husband at Dubai for more than six years by virtue of the employment of her husband. Her parents are residing at Kodad. She would further submit that the plaintiff might have copied the description and address of the second defendant after seeing the contents of registered sale deed No.1410 of 2015 dated 16.03.2015 and that the second defendant has no knowledge about the relationship between the wife of the plaintiff and the first defendant. She would also state that she is the absolute owner and possessor of 533.6 square yards of vacant site situated in Sy.No.1057 of Kodad Village and part of Block No.12 of Kodad Municipality and the said details were mentioned in the registered sale deed bearing document No.1410 of 2015. She is not concerned with the item two of the plaint schedule property. She denied the contention of the plaintiff regarding execution of agreement of sale dated 03.06.2013 in respect of 533.6 square yards in Item No.1 of the property and also stated that it is a false and fabricated document and therefore requested the Court to dismiss the suit.
The petitioner herein filed an application before the trial Court to permit her to be represented through her GPA holder and also filed the copy of the GPA issued in favour of her father on 20.02.2015 in which she specifically authorised her father to represent on her behalf in O.S.No.36 of 2015 apart from other rights.
Considering the arguments of the first respondent-plaintiff that she is available at Kodad on 20.02.2016, the trial Court dismissed the application by observing that she has not filed any proof to show that she was residing at Dubai. In fact, the petitioner herein is at liberty to be represented by her father who is a GPA holder. She executed GPA on 20.02.2016 and specifically authorised her father to represent in a civil case i.e., O.S.No.36 of 2015. The trial Court also observed that she has not filed any memo to show that the GPA was existing as on the date of filing the said application. She has not mentioned any period in the GPA and as such it can be presumed that it was existing as on the date of order of the trial Court i.e., 17.04.2019.
In fact, the GPA was executed specifically authorising her father to take care of the proceedings in the suit. Therefore the said observation of the trial Court is not tenable. Even if it is presumed that she was residing at Kodad she can very well be represented through her GPA holder, who is none other than her father. Therefore, the order of the trial Court in dismissing the I.A.No.209 of 2016 in O.S.No.36 of 2015 is without proper appreciation of facts and is liable to the set aside.
In C.R.P.No.2835 of 2019 Irukulla Chenna Keshawa Rao, the General Power of Attorney holder of the second defendant, stated that the first respondent filed I.A.No.986 of 2015 under Order 39 Rule 1 CPC to restrain the petitioner from alienating the suit schedule property. The notice was issued on 27.01.2016 for appearance and for filing counter. As the petitioner was residing in Dubai, basing on the report of the process server she was set ex parte on 27.01.2016 and the matter is posted on 10.03.2016 for filing counter and for written statement on behalf of other defendant. The petitioner came to Kodad and on verification she came to know that the signature does not belong to her. The first respondent managed the process server and got a false report. She also executed GPA in favour of her father and it was registered in the Sub-Registrar Office in Kodad vide Document No.6 of 2016 and as such in that capacity he requested the Court to set aside the ex parte order dated 27.01.2016.
In the counter filed by the first respondent, he stated that the petitioner has no locus standi and the GPA is not valid and cannot be looked into. Application for temporary injunction was filed on 16.11.2015, notices were issued and posted for appearance on 30.11.2015. Irukulla Chenna Keshawa Rao-GPA holder of the second defendant received notice and suit summons on 25.11.2015 by putting signatures as father of the second respondent-second defendant. The deponent worked as Branch Manager, NDCC Bank, Kodad, but he failed to attend the Court on 30.11.2015 in spite of service of notice and thus he was set ex parte on the same day but not on 27.01.2016 and he never managed the process server nor influenced to give false report. He received suit summons and I.A. notice on 25.11.2015.
The trial Court dismissed the application on the ground that no record is filed to substantiate that the second respondent is an employee at Dubai on the date of issuance of summons and that she was not in India.
The petitioner in C.R.P.No.2898 of 2019 filed I.A.Nos.208 and 986 of 2016 in O.S.No.36 of 2015 for the same relief and both the applications were dismissed on the ground that there is no record to show that she was residing at Dubai for the past six years and as on the date of service of notice she was not in India.
Admittedly, the notice issued by the trial Court was received by the father of the second defendant and he signed on the notice as father of the second defendant. Therefore, in spite of service notice he has not appeared before the Court and not filed the counter and thus the second defendant was set ex parte. Even in the main suit the written statement was filed by the second defendant. Admittedly, the suit is filed for specific performance of an agreement of sale. This Court finds it reasonable to give an opportunity to the petitioner herein by setting aside the ex parte order so as to enable the Court to dispose of the main suit on merits in the interest of justice.
In the result, the Civil Revision Petition Nos.2835, 2898 and 2901 of 2019 are allowed and the orders under challenge are accordingly set aside. However, the trial Court is directed to receive the counter in I.A.No.986 of 2016 and afford an opportunity to both sides while disposing of the applications.
Miscellaneous Petitions, if any, pending in these revisions shall stand closed in the light of this final order.