M/S Maandeo Motors INDIA PVT. LTD. vs. M/S. New Era Engineers And Contractors

Held

The Court held that the lower court's finding that notice was served on the petitioner was a finding of fact, which could not be disproved. The petitioner's primary plea was non-receipt of notice, which the lower court rejected based on evidence of service. The argument regarding the signatures on the summons was not raised in the application before the lower court and was therefore not considered. The Court found that the cause shown by the petitioner for non-appearance and the delay in filing the application to set aside the ex parte decree was not sufficient, as per the reasons recorded by the learned Court below. It is settled law that delay cannot be condoned on mere asking unless sufficient cause is shown. The Court found no illegality or error of jurisdiction in the order of the learned Court below warranting invocation of revisional powers under Section 115 of the CPC. Therefore, the delay condonation application was rightly rejected.

Facts

The petitioner, M/s Maandeo Motors India Pvt. Ltd., was the defendant in O.S.No.26 of 2021, a suit filed by the respondent, M/s New Era Engineers And Contractors, for eviction, vacant possession, and recovery of Rs.67,21,224/- towards arrears of rent, GST, and damages. The suit was decreed ex parte on April 8, 2022, by the XIII Additional District Judge, Gajuwaka. The petitioner subsequently filed I.A.No.694 of 2023 to condone a delay of 330 days in filing an application to set aside the ex parte decree. This application was rejected by an order dated May 1, 2024. The petitioner filed the present Civil Revision Petition under Section 115 of the Code of Civil Procedure (CPC) challenging the rejection of the delay condonation application. The petitioner contended they never received suit summons, while the lower court found that notice was served on both their office and residential addresses.

Key Issues

1. Whether the delay of 330 days in filing the application to set aside the ex parte decree should be condoned, considering the petitioner's claim of non-receipt of suit summons. (Question of fact and law, turning on Order 9 Rule 13 and Section 5 of the Limitation Act, 1963). Petitioner's arguments: The petitioner argued that they did not receive any suit summons, constituting sufficient cause for their non-appearance and the delay in filing the application to set aside the ex parte decree. They claimed to have acquired knowledge of the decree only subsequently. They also raised a new argument that the signatures on the summons were not theirs. They asserted that possession had already been delivered to the landlord on January 1, 2019, but the decree for payment still stood against them. Revenue/State's arguments: The lower court recorded that notice was served on the petitioner's office address on July 9, 2021, and their residential address on July 10, 2021. The court waited for the petitioner's appearance until 3:40 pm on December 20, 2021, despite receiving summons, and consequently set them ex parte. The court found the cause shown for non-appearance and delay insufficient.