APHC010303822016 IN THE HIGH COURT OF ANDHRA PRADESH THURSDAY, THE 23 THE HONOURABLE SRI JUSTICE PURUSHOTTAM KUMAR CHINTALAPUDI CIVIL REVISION PETITION NO: 422/2016 Between: 1. SMT. BANDA LAKSHMI DEVI, W/O. RAMACHANDRA OCC: CULTIVATION, R/O. GOLLAPALLI, CHITTECHERLA VILLAGE, H/O. CHINNAGOTTIGALLU MANDAL, CHITTOOR DISTRICT. 1. SMT DEVALAPALLI AMARAVATHI, W/O. ANANDA REDDY OCC: HOUSEWIFE R/O. DEVALAPALLI, H/O. YERRAGUNTAPALLI, PILER MANDAL, CHITTOOR DISTRICT. 2. SMT MULLAPUDI MANJULA, D/O. VENKATRAMI REDDY, OCC: CULTIVATION, R/O. KOTHAPALLI, H/O. CHITTECHERLA, CHINNAGOTTIGALLU MANDAL, CHITTOOR DISTRICT. 3. TALLAPAKA LAKSHMI NARAYANA, S/O. M CULTIVATION, R/O. D.NO. 19 TIRUPATI URBAN MANDAL, CHITTOOR DISTRICT. Petition under Article 227 of the Constitution of India, praying that in the circumstances stated in the grounds filed to against the order dated 10 197 of 2003 on the file of the Prl. Junior Civil Judge, Piler. IA NO: 1 OF 2016(CRPMP 522 OF 2016 1 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) THURSDAY, THE 23rd DAY OF JULY 2026 PRESENT THE HONOURABLE SRI JUSTICE PURUSHOTTAM KUMAR CHINTALAPUDI CIVIL REVISION PETITION NO: 422/2016 SMT. BANDA LAKSHMI DEVI, W/O. RAMACHANDRA OCC: CULTIVATION, R/O. GOLLAPALLI, CHITTECHERLA VILLAGE, H/O. CHINNAGOTTIGALLU MANDAL, CHITTOOR DISTRICT. ...PETITIONER AND SMT DEVALAPALLI AMARAVATHI, W/O. ANANDA REDDY OCC: DEVALAPALLI, H/O. YERRAGUNTAPALLI, PILER MANDAL, CHITTOOR DISTRICT. SMT MULLAPUDI MANJULA, D/O. VENKATRAMI REDDY, OCC: CULTIVATION, R/O. KOTHAPALLI, H/O. CHITTECHERLA, CHINNAGOTTIGALLU MANDAL, CHITTOOR DISTRICT. TALLAPAKA LAKSHMI NARAYANA, S/O. MUNASWAMY OCC: CULTIVATION, R/O. D.NO. 19-7-108, YADAVA COLONY, TIRUPATI, TIRUPATI URBAN MANDAL, CHITTOOR DISTRICT. ...RESPONDENT(S): Petition under Article 227 of the Constitution of India, praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased to against the order dated 10-12-2015 passed in I.A.No.352 of 2012 in OS No. 197 of 2003 on the file of the Prl. Junior Civil Judge, Piler. IA NO: 1 OF 2016(CRPMP 522 OF 2016 IN THE HIGH COURT OF ANDHRA PRADESH [3606] THE HONOURABLE SRI JUSTICE PURUSHOTTAM KUMAR CHINTALAPUDI SMT. BANDA LAKSHMI DEVI, W/O. RAMACHANDRA OCC: CULTIVATION, R/O. GOLLAPALLI, CHITTECHERLA VILLAGE, H/O. ...PETITIONER SMT DEVALAPALLI AMARAVATHI, W/O. ANANDA REDDY OCC: DEVALAPALLI, H/O. YERRAGUNTAPALLI, PILER SMT MULLAPUDI MANJULA, D/O. VENKATRAMI REDDY, OCC: CULTIVATION, R/O. KOTHAPALLI, H/O. CHITTECHERLA, UNASWAMY OCC: 108, YADAVA COLONY, TIRUPATI, ...RESPONDENT(S): Petition under Article 227 of the Constitution of India, praying that in the herein, the High Court may be pleased 352 of 2012 in OS No. 2 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings including execution of preliminary decree passed in OS NO. 197 of 2003, dated 13-11-2009 on the file of the Prl. Junior Civil Judge, Piler, Chittoor District pending disposal of the CRP and pass Counsel for the Petitioner: 1. SURESH KUMAR REDDY KALAVA Counsel for the Respondent(S): Nil The Court made the following: 1. 3 THE HONOURABLE SRI JUSTICE PURUSHOTTAM KUMAR CHINTALAPUDI CIVIL REVISION PETITION NO: 422/2016 ORDER: 1. This Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure, 1908 ("CPC"). The Petitioner is defendant No.3 in O.S. No.197 of 2003 on the file of the Principal Junior Civil Judge, Piler. Respondent No.1 is the Plaintiff, while Respondent Nos.2 and 3 are Defendant Nos.2 and 4, respectively, in the Suit. 2. Learned counsel appeared for the Revision Petitioner. None for Respondents. 3. The brief facts giving rise to this Revision are as follows: Respondent No.1 instituted O.S. No.197 of 2003 before the trial Court seeking: (i) partition of the plaint schedule properties into three equal shares by metes and bounds and allotment of one such share to the plaintiff by passing a preliminary decree and, thereafter, a final decree; (ii) costs of the suit; and (iii) such other reliefs as the Court may deem fit and proper. 3. Defendant No.1, who is not a party to the present Revision, filed a written statement, which the present Petitioner (Defendant No.3) adopted. Defendant Nos.2 and 4 remained ex parte. The Plaintiff examined herself as P.W.1. As Defendant Nos.1 and 3 remained absent on 12.11.2009, the trial Court set them ex parte. On 13.11.2009, the trial Court passed an ex parte preliminary decree in favour of the Plaintiff. 4 4. The Revision Petitioner thereafter filed an application under Order IX Rule 13 CPC to set aside the ex parte preliminary decree dated 13.11.2009. She also filed an application under Section 5 of the Limitation Act, 1963, seeking condonation of a delay of 701 days in filing the application under Order IX Rule 13 CPC. 5. The application under Section 5 of the Limitation Act was numbered as I.A. No.352 of 2012. After hearing both parties, the trial Court dismissed the application. Assailing it, the aggrieved D3 preferred revision. Brief contentions in the I.A.No.I.A.No.352 of 2012: 6. The Revision Petitioner pleaded that the suit was posted on 12.11.2009 for the cross-examination of P.W.1. Her counsel had addressed a letter to her village informing her of the hearing. However, she did not receive the letter as she, along with her family, had migrated to Tirupati in search of livelihood owing to drought conditions in her village and remained there for more than two years. Consequently, she could not appear before the trial Court on 12.11.2009. The trial Court, therefore, set her ex parte and passed a preliminary decree on 13.11.2009. After returning to her village, she received notice in the final decree proceedings. On verifying the court record through her counsel, she learnt that the Suit had already been decreed. She thereafter filed the application under Order IX Rule 13 CPC along with an application to condone the delay of 701 days. 7. The Respondent No.1/Plaintiff opposed the application by filing a counter, contending that the Petitioner had failed to establish sufficient cause for condonation of the delay. 8. The Plaintiff/Respondent No.1 denied the Petitioner's assertion that she had migrated to Tirupati due to drought conditions. It was contended that the Petitioner had full knowledge of the proceedings and that her counsel 5 did not cross-examine P.W.1 for want of instructions. The trial Court, being satisfied with the evidence on record, passed the preliminary decree on 13.11.2009. The Plaintiff further contended that the Petitioner had not disclosed the date on which she received notice in the final decree proceedings, the date on which she left for Tirupati, or the date of her return to the village. According to the Plaintiff, the Petitioner wilfully neglected to prosecute the suit and, therefore, the inordinate delay of 701 days did not deserve to be condoned. 9. The remaining defendants did not contest the application. Observations: 10. By the impugned order, the learned Judge observed that P.W.1 was examined on 12.11.2009 and that, as Defendant Nos.1 and 3 remained absent, they were set ex parte. Since Defendant Nos.2 and 4 had already been set ex parte, the learned Judge passed a preliminary decree on 13.11.2009, dividing the suit schedule property into three equal shares and allotting one share to the Plaintiff. 11. The learned Judge further observed that the Suit had been pending since 2003 and that the parties had been regularly attending the proceedings. Although the chief-examination affidavit of P.W.1 was filed on 21.08.2009, the Petitioner did not appear to cross-examine her despite having knowledge of the proceedings. The Petitioner approached the Court only after about two years seeking condonation of delay. The only explanation offered was that she had migrated to Tirupati in search of livelihood. The trial Court held that this explanation did not constitute sufficient cause within the meaning of Sec.5 of the Limitation Act. 12. The trial Court also observed that the Suit was one for partition among members of the family and that the preliminary decree had already 6 determined the shares of the parties. Holding that no sufficient cause had been established for condoning the delay, the trial Court dismissed the application. Aggrieved thereby, the petitioner filed the present revision. Notices in Revision: 13. Notices were served on all the Respondents. However, none entered appearance. Accordingly, this Court heard the learned counsel for the Petitioner. 14. The learned counsel for the Revision Petitioner would argued that, the trial Court dismissed the application without properly appreciating the explanation offered for the delay. According to the learned counsel, the trial Court adopted an unduly technical approach while considering the application under Sec.5 of the Limitation Act. 15. It was further argued that, in a suit for partition, all the parties occupy the position of Plaintiffs to the extent of their respective claims. Therefore, the dispute ought to be decided on merits rather than on technical grounds. 16. The learned counsel further argued that the Petitioner had adopted the written statement filed by Defendant No.1, specifically disputing the Plaintiff's entitlement to any share in the suit schedule property. In view of the serious dispute regarding the nature of the property and the Plaintiff's entitlement, the learned Judge ought not to have permitted the suit to be decreed ex parte without affording the Petitioner an opportunity to contest the matter. It was, therefore, argued that the Petitioner had established sufficient cause for invoking Sec.5 of Limitation Act application. 17. The learned counsel also argued that the Petitioner's explanation for her absence, namely that she had migrated to Tirupati in search of livelihood owing to drought conditions in her village, was not effectively disputed. It was contended that the trial Court failed to consider this explanation in its 7 proper perspective while deciding the application. There is no representation from the Respondents. 18. Heard the learned counsel for the Revision Petitioner. The record has been perused. Discussion: 19. Before examining the rival contentions, it is necessary to note that the Petitioner filed two separate applications before the trial Court. The first application was under Sec.5 of the Limitation Act seeking condonation of the delay in filing the application under Order IX Rule 13 CPC. The second application was under Order IX Rule 13 CPC for setting aside the ex parte preliminary decree. The present revision concerns only the order passed in the application filed under Sec. 5 of the Limitation Act. 20. The learned Judge dismissed I.A.No.352 of 2012 filed under Sec.5 of the Limitation Act. Consequently, the application under Order IX Rule 13 CPC could not be considered on merits. 21. Since the present Revision challenges only the dismissal of the application under Sec. 5 of the Limitation Act, the scope of this revision is confined to this application. 22. Before considering whether the reasons assigned by the learned Judge warrant interference by the Revisional Court, this Court notes that I.A. No.352 of 2012, filed under Sec.5 of the Limitation Act by the Revision Petitioner/D3, shows that only three Respondents have been arrayed in the cause title. Respondent No.1 is the Plaintiff, while Respondent Nos.2 and 3 are D2 and D4, respectively. It is evident that D1 has not been shown as a party. The impugned order does not contain any discussion regarding the non-joinder of D1. However, after the impugned order was 8 passed, the Revision Petitioner approached this Court with the very same cause title. 23. This Court finds it relevant to note that the absence of the parties to the Suit in the interlocutory application has a direct bearing on the relief sought. 24. The Revision is filed under Sec.115 of CPC. In view of the factual aspects and circumstances, the point arise for consideration is Whether there are reasons to interfere in the findings in the impugned order under the provision, in view of the absence of all the parties to the Suit in the I.A.No.352 of 2012, and if so what relief? Point: Order I Rule 1 of the Code of Civil Procedure deals with the joinder of persons as Plaintiffs, while Order I Rule 3 deals with the joinder of persons as Defendants. 25. Order I Rule 3 of the Code of Civil Procedure, 1908, reads as follows: “1[3. Who may be joined as defendants.—All persons may be joined in one suit as defendants where— (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and (b) if separate suits were brought against such persons, any common question of law or fact would arise.]” 26. Order I Rule 9 of CPC deals with the effect of the non-joinder or misjoinder of parties. Order I rule 9 of CPC reads as follows: 9 “9. Misjoinder and non-joinder.—No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it: 3[Provided that nothing in this rule shall apply to non- joinder of a necessary party.]” 27. Order I Rule 10(2) reads as follows: “(2) Court may strike out or add parties.—The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.” The provision confers power on the Court to strike out or add parties who have been improperly joined or omitted from the proceedings. 28. The suit was instituted against four Defendants. The record shows that all the Defendants were eventually set ex parte. However, it is an undisputed fact that D1 and D3 (the Revision Petitioner) had filed their written statements. Since D1 and D3 did not appear when the witness was under examination, they were set ex parte. Order I Rule 9 of the Code of Civil Procedure provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and that the Court shall, in every suit, adjudicate the matter in controversy so far as it concerns the rights and interests of the parties actually before it. 29. It is relevant to note that D1 filed a written statement specifically denying that the suit schedule property was ancestral property. D1 is none other than the father of the Plaintiff and D2. D3, the Revision Petitioner, claims to 10 have purchased the property. The record further shows that D1 did not take any steps either to challenge the order setting him ex parte or to question the preliminary decree. In such case it may not said that, D1 is a not a necessary party to the suit. D1 disputes the nature of the property by asserting that it is his self-acquired property. In such a case, in any of the proceedings in the suit, either Interlocutory or otherwise, even remained ex parte in the suit for non examination of Plaintiff witness, his presence cannot be said as not necessary. 30. In the absence of D1, the rights and interests relating to the suit schedule property cannot be effectively adjudicated. Even in an interlocutory application, where a necessary party has not been impleaded, there ought to be a reference to such party at least as a pro forma party. This Court is finds that, in the cause title of the interlocutory application under Sec.5 of Limitation Act, of the Revision Petitioner, not making the Defendant No. 1 as a party requires for consideration by the court. It appears that the learned Judge overlooked this aspect. Further, this issue was not brought to the notice of the Court even in the counter filed by the opposing parties. 31. In their counter, the opposing parties have contended that the written statement filed by D1 and adopted by D3 is not valid. This contention is untenable. The Court accepted the memo placed on record and treated the written statement of D1 as that of D3. Consequently, the stand taken by D3 remains identical to that of D1, namely, that the property is self-acquired and that the transfer in favour of D3 is valid. In such circumstances, D1 is undoubtedly a necessary party. Unfortunately, the learned Judge has not adverted to this aspect. 32. The proviso to Order I Rule 9 makes it clear that the said provision does not apply where there is non-joinder of a proper party. The provision unequivocally states that, if the omitted party is a necessary party for the 11 effective adjudication of the dispute concerning the rights and interests involved, Order I Rule 9 of the Code of Civil Procedure has no application. 33. It is relevant to refer relevant provisions relating to the interlocutory application in the Civil Rules. The Andhra Pradesh Civil Rules of Practice and Circular Orders, 1980, Chapter V deals with interlocutory application proceedings. Rule 53(29) reads as follows. “(29) Form of Interlocutory Application:- Interlocutory applications shall be headed with the cause title of the plaint, original petition, or appeal, as in Form No. 13.” Form No.13 prescribes the proforma in which an interlocutory application is to be filed. The said provision provides that the cause title of the Plaint shall be filed in the interlocutory application. It appears that neither of the parties has brought this anomaly to the notice of the learned Judge. This anomaly requires adjudication before arriving at a proper conclusion with regard to the application under Sec.5 of the Limitation Act, as well as the other connected applications. 34. This anomaly requires adjudication by the learned Judge before arriving at a just and proper conclusion. 35. The present Revision has been filed under Sec.115 of the Code of Civil Procedure, referring Revision powers, reads as follows: “115. Revision.— 4[(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears— (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: 12 1[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.] 2[(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. 3[(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.] Explanation.—In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue in the course of a suit or other proceeding.]” 36. Section 115(1) of the Code of Civil Procedure provides that where the trial Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may pass such order in the case as it thinks fit. 37. In the present case, The trial Court failed to consider whether the application suffered from the procedure under Civil Rules of Practice and Circular Orders, 1980 and non-joinder of a necessary party. Such omission resulted in the exercise of jurisdiction without considering a jurisdictional fact essential for adjudication. The failure therefore constitutes material irregularity and requires exercise of jurisdiction attracting Sec. 115 CPC. 38. There may be two applications pending before the trial Court, namely, an application under Sec.5 of the Limitation Act seeking condonation of delay and an application under Order IX Rule 13 of the Code of Civil Procedure. However, the status of the application filed under Order IX Rule 13 has not 13 been placed before this Court. It appears that the trial Court first took up the application filed under Sec. 5 of the Limitation Act. 39. The law is that both applications ought to be considered together. Even where only an application under Order IX Rule 13 of the Code of Civil Procedure is filed, the reasons stated therein may be considered for delay, notwithstanding the absence of a separate application under Sec. 5 of the Limitation Act. This Court is conscious of the fact that any ex parte Defendant may independently file an application to set aside the ex parte decree and the effect of the order passed therein would also extend to the other Defendants who had likewise remained ex parte. This Court is of the view that any further discussion on this aspect is unnecessary, as it falls beyond the scope of the present proceedings. 40. From the foregoing discussion, this Court is satisfied that the learned Judge failed to appreciate the necessity of the presence of the required parties in the interlocutory application and proceeded to pass the impugned order without considering that issue. 41. The principal reason assigned by the trial Court for dismissing the application is that no reasonable explanation constituting sufficient cause was offered to condone the delay of 701 days. It is trite to refer that, before considering whether sufficient cause has been established, the Court ought to have first satisfied itself that the application was properly constituted and that all necessary parties were before the Court. 42.In the circumstances discussed above, this Court is of the view that the failure to consider the question of reference of necessary parties, following the Civil Rules and Form 13, affects the root of the case. Therefore, this Court is of the view that the reasons assigned in rejecting the application to condone delay, that no sufficient cause is shown to condone the delay, are not relevant to discuss and give a finding. The nature of the application as 14 to the applicability of Form 13 is not complied with; that too in a suit for partition, the parties become plaintiffs, a careful and due procedure has to be followed. The above discrepancy requires reconsideration by the learned Judge. Hence, this court restrains any finding on the aspect of sufficient cause to condone delay, leaving open to the learned Judge to decide afresh after deciding the discrepancy under due procedure of law. 43.This Court called for a status report from the learned Judge as to the status of the proceedings and it placed before this court. The learned Judge has reported that, after the passing of the preliminary decree, an application for passing a final decree was filed and has remained pending since the year 2011. This indicates that the rights flowing from the preliminary decree have not yet crystallised. 44. In the peculiar facts and circumstances of the present case, without expressing any opinion on the merits of the reasons assigned by the learned Judge for dismissing the application, this Court considers it appropriate to set aside the impugned order and remit the matter for fresh consideration, particularly on the issue relating to the joinder and non- joinder of parties in the interlocutory application, consequently the reasons assigned for condoning the delay. Accordingly point is answered that, interference is required. 45. It is made clear that this Court has expressed its opinion only to the limited extent discussed above and since the matter is being remitted on the issue of non-joinder, non-following of Form-13 under Civil Rules of Practice, this Court refrains from expressing any opinion regarding the merits of the application under Sec.5 or Order IX Rule 13. The learned Judge shall consider the application afresh and proceed independently, uninfluenced by any observations made in this order, including those relating to the 15 question of parties, and dispose of the matter in accordance with law following due procedure of law. 46. Accordingly, the Civil Revision Petition is allowed in part by setting aside the impugned order dated 10.12.2015, restoring I.A.No.352 of 2012 in O.S. No.197 of 2003 on the file of the Principal Junior Civil Judge, Piler, and remanding the matter to the trial Court for fresh consideration, including the question of necessary parties in the interlocutory application and the condoning the delay by following the due procedure. No order as to costs. Interlocutory applications, if any, shall stand closed in terms of this order. ______________________________________ PURUSHOTTAM KUMAR CHINTALAPUDI, J Dt: 23.07.2026 DSV 16 THE HONOURABLE SRI JUSTICE PURUSHOTTAM KUMAR CHINTALAPUDI CIVIL REVISION PETITION NO: 422/2016 Dated: 23.07.2026 DSV