P a g e | 1 APHC010074292013 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI THURSDAY, THE 24th DAY OF SEPTEMBER 2026 PRESENT THE HONOURABLE SRI JUSTICE BALAJI MEDAMALLI CIVIL MISCELLANEOUS APPEAL NO: 542 OF 2013 Between: 1. REDLAPALLI PRAMEELAMMA & 3 OTHERS, W/o. Late R. Viswanatham Setty, Hindu R/o. D.No.5/47, M.G. Road, Kadiri 2. Redlapalii Sukumar, S/o. Late R. Viswanatham Setty, Hindu, Trader, R/o. 5/47, M.G. road Kidiri, Anantapur dist. 3. A. Seeraja Devi, W/o Akula Chandrasekhar, Hindu, Housewife, D.No.17- 265, B.K.M.Street, Kadapa 4. S. Sreedevi, W/o. Sure Sreenivasa, Hindu, Housewife, D. No 13/75, Sakthi House, First Floor, Kodanadarama Nagaram P&T Colony, Dilsukh Nagar, Hyderabad ...Petitioners AND 1. TOLETI LAKSHMI NARAARAMMA 15 OTHERS, W/o. Toleti Venkata Rao, R/at Indiranagar Tanaka Village, and Mandal. Anantapur dist. 2. Tholeti Sreenivasa Rao, S/o. Late Tholeti Venkata Rao R/at Indiranagar, Tanaka Village, and Mandal, Anantapur dist. 3. Tholeti Sree Hari, S/o. Late Tholeti Venkata Rao, Respondents 1 to 5 are residing at, Indiranagar Tanaka Village, and Mandal. Anantapur dist. P a g e | 2 4. Tholeti Sreedhar, S/o. S/o.Late Tholeti Venkata Rao, Hindu, Tanakal Village & Mandal, Anantapur dist. 5. Subba Lakshmi, W/o. N.seshaphani Hindu, staff Nurse, Govt. Hospital, Kadiri, Anantapur dist. 6. Sukanya, W/o. N.Seshaphani, Hindu, Staff Nurse Govt. Hospital, Gorantla.Village and Mandal Anantapur dist. 7. Tholeti Sivarama Rao, S/o. Late Tholeti Narsappa Aged about 68 years, Agriculturist, Kothapalli, Tanaka! Mandal, Ananatapur dist. 8. Tholeti Venkatesh, S/o. Tholeti Siviaramrao, Hindu, Trader, Tirupathi Chittoor dist. 9. Vijaya Lakshmi, W/o. Sesha Sai, Hindu, House wife, Tirupathi, Chittoor dist 10. Tholeti Manoj, S/o. Tholeti Nagaraja Rao, Hindu, Hindu, Student. Kotapalle, Tanakal Mandal, Anantapur dist. 11. Nagamani, W/o. Hari Krishna Sastry, Hindu, Housewife, Vengalamma Cheruvu,. Puttaparthi Mandal. Anantapur dist 12. Tholeti Kishore Kumar, S/o. Tholeti Viswanatha Rao, hindu, Kotapalle Tankal Mandal, Now Workind as Marketing Manager, MICO, White Fields, Bangalore, 13. Sree Lakshmi, W/o. Nagendranath T.Viswanatha Rao Hindu, Housewife, Bagepalli, Chikkaballapur, District, Karnataka state, 14. Subbarayappa, adopted son of lateSubbarayappa Anda late Santhamma (D/o. Tholeti Narasappa) Hindu, Agriculturist, Residing at Cheluru, Chintamani Talluk Karnataka State, 15. Achamma Anitha, W/o. H.S. Ramakrishna D/o. late Tholeti Narasappa Housewife, Residdint at S.S. Ghati, Bangalore Rural District, Karnataka State, P a g e | 3 16. Lakshmi devamma Chitemma, W/o. Late V.S. Krishna Murthy D/o. Tholeti Narasappa Hindu, Housewife, residing at B.Sandram, Tanakallu Mandal, Ananatapur dist. ...Respondents Appeal Under Order 43 rule 1(d) of CPC against the orders passed in I.A.No.229 of 2010 in O.S.No.93 of 2009, dt.06.06.2013, on the file of Senior Civil Judge, Kadiri . IA NO: 1 OF 2013 (CMAMP 1208 OF 2013 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 Stay all further proceedings in pursuant of the preliminary decree dt.30.06.2010 in OS.No.93 of 2009 on the file of the court of the Senior Civil Judge, Kadiri, pending disposal of Civil Miscellaneous Appeal in this Hon'ble Court and pass. IA NO: 1 OF 2025 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 may be pleased to permit the petitioner to serve notice in CMA No.542/2013 to the un-served Respondents by way substitute service by publishing in the Daily News Paper of the locality in the interest of justice and pass Counsel for the Petitioners: K SITA RAM Counsel for the Respondents: The Court made the following order: P a g e | 4 THE HONOURABLE SRI JUSTICE BALAJI MEDAMALLI CIVIL MISCELLANEOUS APPEAL NO: 542 OF 2013 JUDGMENT: 1. This Civil Miscellaneous Appeal is filed against the order dated 06.06.2013 passed in I.A.No.229 of 2010 in O.S.No.93 of 2009 on the file of Senior Civil Judge, Kadiri (for short, ‘the Trial Court’), whereby the application filed by the appellants / petitioners / defendants 3 to 6 under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short, ‘C.P.C’), seeking to set aside the ex parte decree dated 30.06.2010 passed against them in O.S.No.93 of 2009, was dismissed. 2. For the sake of convenience and brevity, the parties are hereinafter referred to as they were arrayed before the Trial Court. 3. Case of the appellants/petitioners is that respondents herein are plaintiffs in O.S.No.93 of 2009, which was instituted before the Trial Court seeking partition and separate possession of the joint family properties. Petitioners were impleaded as defendant Nos.3 to 6, as defendant Nos.1 and 2 had alienated the suit property in favour of the husband of defendant No.3 and the father of defendant Nos.4 to 6. Upon service of summons, petitioners engaged counsel to contest the suit and took steps for filing the vakalath and written statement. However, before the same could be filed, petitioner No.2 fell ill with chikungunya and severe joint pains. On account of his illness, he could not contact his counsel and furnish necessary instructions. Consequently, P a g e | 5 vakalath and written statement could not be filed, and petitioners were set ex parte by order dated 30.06.2010. On coming to know of the said order, petitioners filed the present application on 13.07.2010 seeking to set aside the ex parte order. The learned Trial Court, however, dismissed the said application on the ground that no medical evidence had been produced to substantiate the illness pleaded by petitioner No.2 and that no satisfactory explanation had been offered for the non-appearance of the other petitioners i.e., defendant Nos.3, 5 and 6. Aggrieved by the said order, the appellants/petitioners have preferred the present appeal. 4. It is seen from the record that notice was duly served on some of the respondents, while in respect of the remaining respondents, the notices were either returned with an endorsement of refusal or could not be served due to insufficient address. In view of the same, this Court, by order dated 17.07.2026 passed in I.A.No.1 of 2025, directed service of notice on unserved respondents by way of substituted service through publication in a daily newspaper. Pursuant to the said order, petitioners caused the notice to be published in a daily newspaper and placed the proof of such publication on record by filing a memo dated 13.08.2026. Despite the aforesaid service, none of the respondents has entered appearance before this Court. 5. Heard learned counsel for petitioners. 6. The principal ground urged by the learned counsel for petitioners is that the learned Judge, while considering the application, observed that no P a g e | 6 material had been placed on record to establish that Petitioner No.2 was suffering from chikungunya and joint pains and that, on account of the said illness, he was unable to appear before the Court and follow up the proceedings. The learned Judge also took into consideration the fact that learned counsel appearing for petitioners had neither filed the vakalath nor the written statement, despite instructions to do so. It is further contended that no specific reason was assigned for the non-appearance of petitioners/Defendant Nos.3, 5 and 6. Petitioner No.2, being the male member of the family, was looking after its affairs as well as the litigation on behalf of the other defendants. He had accordingly instructed the learned counsel to appear and file the necessary pleadings. However, due to inadvertence, learned counsel failed to file the vakalath and written statement. In the meanwhile, Petitioner No.2 suffered from chikungunya and severe joint pains and, on account of the said illness, was unable to follow up the matter with learned counsel. In these circumstances, petitioners could not effectively participate in the proceedings, resulting in the ex parte decree. 7. Learned counsel for petitioners further contended that the application seeking to set aside the ex parte decree was filed without undue delay and that the absence of petitioners was neither deliberate nor willful. Petitioners, therefore, submitted that, in the circumstances pleaded by them, they ought to have been afforded an opportunity to contest the suit on merits and that the dispute ought to have been adjudicated after providing them a reasonable opportunity of being heard. P a g e | 7 8. Learned counsel for petitioners also placed reliance on the judgment of the Hon’ble Supreme Court in Robin Thapa V. Rohit Dora1 and submitted that, as far as possible, disputes ought to be adjudicated on merits rather than being terminated by default, whether on the part of the plaintiff or the defendant. The cause of justice requires that the parties be afforded a reasonable opportunity to place their respective contentions before the Court. 9. The object underlying Order IX Rule 13 CPC is to provide an opportunity to a party to contest the proceedings on merits when sufficient cause is shown for non-appearance. It is well settled that the Courts should adopt a liberal approach while considering such applications and endeavor to decide the matters on merits rather than on technical grounds, provided that no prejudice is caused to the opposite party. 10. In the present case, petitioners have submitted an explanation for their non-appearance and for failure to file the vakalath and written statement. Having regard to the circumstances pleaded, and particularly the fact that petitioners seek an opportunity to contest the suit on merits, this Court is of the considered view that they ought to be afforded such an opportunity. The correctness or otherwise of the defence sought to be raised by petitioners, as well as the respective rights and contentions of the parties, are matters to be considered by the Trial Court upon adjudication of the suit on merits. Affording an opportunity to petitioners to contest the suit would, therefore, facilitate a proper adjudication of the dispute in accordance with law. 1 (2019) 7 SCC 359 P a g e | 8 11. Accordingly, the order dated 06.06.2013 passed in I.A.No.229 of 2010 in O.S.No.93 of 2009 is set aside and, consequently, the ex parte decree dated 30.06.2010 is also set aside. The suit in O.S.No.93 of 2009 is restored to the file of Senior Civil Judge, Kadiri, for fresh adjudication in accordance with law. Since the suit is of the year 2009, the Trial Court shall endeavour to dispose of the suit as expeditiously as possible, after affording reasonable opportunity to both parties, preferably within a period of twelve (12) months from the date of receipt of a copy of this judgment. The parties shall cooperate with the Trial Court for expeditious disposal of the suit. 12. In view of the above, Civil Miscellaneous Appeal is allowed. No order as to costs. Interim orders, if any, granted earlier shall stand vacated, and all pending miscellaneous petitions, if any, shall stand closed. __________________________ JUSTICE BALAJI MEDAMALLI Date: 24.09.2026 SAK P a g e | 9 143 THE HONOURABLE SRI JUSTICE BALAJI MEDAMALLI CIVIL MISCELLANEOUS APPEAL NO: 542 OF 2013 Date: 24.09.2026 SAK