- (1.) LEAVE granted. Respondent No. 1 -Plaintiff filed Original Suit No. 21/2006 for specific performance of agreement to sell dated 19.04.2006. The aforesaid agreement was in respect of 4 acres 22 cents of land, situated in the revenue estate of Rajahmundry, East Godavari District, Andhra Pradesh. Since the aforesaid agreement was executed by the mother of the Appellant, she was the sole Defendant impleaded in the aforementioned Original Suit No. 21/2006. The mother of the Appellant denied the execution of the agreement to sell, and contested the suit filed by Respondent No. 1 -Plaintiff.
(2.) UNFORTUNATELY , the sole Defendant died on 24.10.2010 while travelling on a train to Rajahmundry, to contest the aforementioned suit. In order to implead the legal representatives of the deceased sole Defendant, the Principal District Judge, Godavari, Rajahmundry (hereinafter referred to as 'the trial court') ordered service of summons on the legal representatives namely, on her husband (who was employed at Allahabad) and her two sons (one of whom had a permanent address at Delhi, and the second was studying at Ludhiana). It is not a matter of dispute, that the summons issued on the legal representatives (of the deceased sole Defendant) came to be served in September, 2011. Since the legal representatives of the deceased sole Defendant did not enter appearance on 29.09.2011, they were proceeded against ex -parte. In the absence of the legal representatives (of the deceased sole Defendant), evidence was produced on behalf of Respondent No. 1 -Plaintiff on 14.10.2011. On the following date of hearing, namely, on 19.10.2011, the suit for specific performance was decreed ex -parte. Within five days of the passing of the ex -parte decree, the Appellant along with his two sons filed I.A. No. 2775/2011, before the trial court Under Order 9 Rule 13 of the Code of Civil Procedure, seeking setting aside of the ex -parte decree dated 19.10.2011. The above -mentioned I.A. was dismissed by the trial court, vide order dated 21.12.2011. The factual position, that weighed with the trial court in not accepting the prayer made in the abovementioned I.A. (for setting aside the ex -part decree), is apparent from the factual position depicted by the trial court in paragraph 7 of its order dated 21.12.2011. The same is being extracted hereunder: "Admittedly, the suit summons were served on the Defendants at Delhi as admitted in the affidavit in para 4 directing them to appear before this Court on 29.9.2011 either personally or through their advocate. When once the summons are served, the duty of the Petitioners is to appear before the court either personally or through their advocate. But for the reasons mentioned in the affidavit, they could not appear before the court personally, they did not disclose the reason for their non -appearance through agent i.e., advocate. Even accepting the contention of the Petitioners without conceding that the Petitioners 2 and 3 could not get leave, nothing prevented the Petitioner No. 4 to appear before the court on the date of adjournment. For the reasons best known to them all the Petitioners simply avoided to appear before the court on the dates of adjournment. But invented a story that they could not get leave from their employer. No piece of evidence was brought to the notice of the court that the Petitioners 2 and 3 applied for leave and their leave was rejected by their employer. In the absence of any such material, the reasons assigned by them for their absence on the date of adjournment is unbelievable."
(3.) THE Appellant along with his two sons challenged the order dated 21.12.2011 passed by the trial court, through Civil Miscellaneous Appeal No. 141 of 2012 before the High Court of Judicature of Andhra Pradesh, at Hyderabad (hereinafter referred to as 'the High Court'). The same came to be dismissed by the High Court on 06.03.2012.;