Parameshwari Singh, v. R. Urmila,

THE HON'BLE SRI JUSTICE M. SEETHARAMA MURTI CIVIL REVISION PETITION No.5133 of 2017 ORDER:

This Civil Revision Petition, under Article 227 of the Constitution of India, filed by the petitioner-5th respondent in O.P.No.630 of 2016, on the file of the learned Chief Judge, City Civil Court, Hyderabad, is directed against the order, dated 07.07.2017, passed in I.A.No.4063 of 2017 in O.P.No.630 of 2016, whereby the application of the said 5th respondent in the said OP filed under Order IX Rule 7 of the Code of Civil Procedure, 1908, was dismissed and her request to set aside the ex parte order, dated 19.09.2016, was rejected by the Court below. 2.

Aggrieved thereof, the 5th respondent filed this revision petition. 3.

I have heard the submissions of Mrs. Rama Manoja, learned counsel for the petitioner-5th respondent, and of Sri Vedula Srinivas, learned Senior Counsel appearing for the first respondent in the Election Petition. I have perused the material record. 4.

Learned counsel for the petitioner submits that after the 5th respondent was set ex parte in the Election O.P., the afore-stated interlocutory application was filed within the time allowed by law and that in the affidavit filed in support of the petition, sufficient explanation is offered for failure to appear before the Court/Tribunal on the date the 5th respondent was set ex parte and that despite offering such explanation, the trial Court/Tribunal erroneously dismissed the petition and that in the Election O.P., trial has not yet commenced and, therefore, an opportunity may be given to the 5th respondent-returned candidate to have the cause decided on merits, by setting aside the ex parte order and by permitting to file her counter, to meet the ends of justice. It is further

submitted that the counter in the OP was also filed along with the petition to show the bona fides of the petitioner/5th respondent. 5.

Learned Senior Counsel appearing for the election petitioner-first respondent herein would bring to the notice of the Court the contents in the affidavit filed in support of the petition of the 5th respondent and would further submit as follows: 'The only explanation offered by the 5th respondent in support of her request to set aside the ex parte order is that after her election, she was busy in discharging her duties and that for that reason she could not give instructions to her counsel to file counter. The said explanation is not a valid explanation. The impugned order also shows that even as on the date the subject petition was disposed of, neither the 5th respondent nor her counsel were present and, therefore, the Tribunal was constrained to hear the submissions of the election petitioner and pass the impugned order. Her above conduct discloses that she is not diligent. In the facts and circumstances of the case, she does not deserve indulgence of this Court. Hence, the revision petition is devoid of merit and is liable for dismissal. 6.

I have given earnest consideration to the facts and submissions. In the considered view of this Court, when the matter is still before the trial Court and the enquiry in the OP has not yet commenced and when the application to set aside the ex parte order is filed within the time allowed by law, the ends of justice would be met if an opportunity is afforded to the 5th respondent-returned candidate to contest the OP on its merit by participating in the enquiry. It is also brought to the notice of the Court that to show her bona fides, the 5th respondent has already filed counter along with the petition to set aside the ex parte order. However, to offset the hardship that would be caused to the election petitioner on account of the delay in disposal of the O.P., this Court finds

that a relief can be granted after imposing heavy terms. On the above analysis, this Court finds that the impugned order can be set aside and an opportunity may be given to the 5th respondent, petitioner herein, to contest the OP on merits as such a course sub-serves the ends of justice. 7.

In the result, the Civil Revision Petition is allowed and the order, dated 07.09.2017, in I.A.No.4063 of 2017 in O.P.No.630 of 2016 is set aside and as a sequel, the said application is allowed and the ex parte order, dated 19.09.2016, passed against the 5th respondent in the Election O.P. is set aside, subject to the condition that the 5th respondent shall pay to the election petitioner or deposit to the credit of the afore-stated O.P. Rs.10,000/- (Rupees ten thousand only) within a period of three (03) weeks from the date of receipt of a copy of this order. Failing compliance of the afore-stated condition, the petition to set aside the ex parte order shall stand dismissed and the order in the revision shall stand revived.

Considering the fact that the OP is of the year 2016, the learned Chief Judge is directed to endeavour to dispose of the O.P., as expeditiously as possible, and preferably within a period of two (02) months from the expiry of three (03) weeks time, which is granted to the 5th respondent for payment or deposit of costs. Miscellaneous petitions, if any, pending in this Civil Revision Petition shall stand closed.

_____________________________________ JUSTICE M. SEETHARAMA MURTI Date: 5th October, 2017 Note: Issue C.C. by 09.10.2017 (B/o.) KL

THE HON'BLE SRI JUSTICE M. SEETHARAMA MURTI CIVIL REVISION PETITION No.5133 of 2017 Date: 5th October, 2017 KL