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THE HON'BLE SRI JUSTICE Dr. V.R.K.KRUPA SAGAR
CIVIL REVISION PETITION No.3396 of 2019
ORDER:
The defendant in the trial Court filed this civil revision petition under Section 115 of C.P.C. impugning the order dated 03.05.2019 passed in I.A.No.42 of 2018 in O.S.No.11 of 2011 by the learned I Additional District and Sessions Judge, Visakhapatnam. The respondent herein was the plaintiff before the learned trial Court.
2. O.S.No.11 of 2011 was a suit for permanent injunction to restrain the defendant therein from interfering with peaceful possession and enjoyment of the immovable property by the plaintiff. At some point of time, the defendant did not participate in the trial process and he was set ex-parte and during subsequent hearings, the suit was adjudicated and decree in favour of the plaintiff was passed. It is thereafter, the defendant therein intended to file an application under Order IX Rule 13 of C.P.C. seeking to set aside the judgment that was passed ex-parte. However, he found that there was 136 days delay in filing the said application and therefore, to condone that delay he also filed an application under Section 5 of the Limitation Act. Both these applications were heard together and the learned I Additional District and Sessions Judge, Visakhapatnam did not find sufficient cause to condone the delay and therefore, he dismissed both the applications. Aggrieved by the same, the defendant in the suit filed this civil revision petition stating that the learned trial Court did not consider the grounds raised by this revision petitioner in seeking to condone the delay and that the trial Court failed to see 2 that the petitioner is a business man suffering from Ocular Tuberculosis and as a consequence of it, he lost his visual capacity and he has been taking treatment at Shankar Netralaya, Chennai, which is a far off place. It is on these grounds he requests the Court to upset the impugned order.
3. Learned counsel for the respondent submits that since the revision petitioner failed to file any document indicating his sickness and failed to offer appropriate reasons for his absence and for the fact that he made incorrect averments in the petition, the learned trial Court rightly refused to condone the delay and this Court need not interfere with that reasoned order in this revision.
4. Considering the material available on record and the submissions made by both the learned counsel, the point that arises for consideration is:
"Whether the impugned order suffers from material irregularity or illegality as the learned trial Court failed to consider the facts and failed to exercise discretion in the manner that is expected of law?"
5. Point:
The revisionist claims that the facts he narrated in his affidavit filed before the learned trial Court were not at all considered by the learned trial Court. Therefore, it is incumbent on part of this Court to look into his petition and find out whether the learned trial Court considered the facts averred in the petition. In his sworn affidavit filed before the learned trial Court this petitioner stated that he has been suffering from disorder to his 3 eye and he has been taking treatment at Shankar Netralaya, Chennai while he himself is a resident of Visakhapatnam. At para No.3 of his affidavit, it is stated that it is in those circumstances he was unable to contact his advocate and pursue the suit on 30.06.2017 and the suit was decreed ex parte since he could not file his written statement on the date fixed by the Court. As against this, the respondent herein, who filed his counter in the interlocutory proceedings before the learned trial Court, made an averment at para No.5 that the above allegation of the petitioner is incorrect and in fact the petitioner as a defendant had filed his written statement and the trial took place and on 30.06.2017 the case was coming up for cross-examination of PW.1.
6. The above rival contentions were noticed by the learned trial Court and at para No.6 of the impugned order, it has recorded that this revision petitioner filed written statement on 02.06.2011 and thereafter, he failed to attend the Court and he was set ex-parte on 12.06.2017 and subsequently, the suit itself was decreed on 30.06.2017. Learned counsel for the revision petitioner is unable to contradict the correctness of those observations found in the impugned order. This discussion indicates that one of the contentions raised by the revision petitioner before the learned trial Court was adverted to and it was recorded that he made factually incorrect averments in his sworn affidavit.
7. This revision petitioner in his affidavit filed before the learned trial Court mentioned that he has been sick and he has been taking treatment at Chennai. It is the only cause that is narrated as the cause that disabled him from contacting his 4 advocate. In the counter filed by the respondent/plaintiff, the correctness of those averments is challenged. A perusal of the impugned order shows that these contested facts were noticed at para No.7 by the learned trial Court and it was mentioned that this revision petitioner failed to offer any proof about treatment he has been obtaining for his eye and he failed to make mention the period during which he underwent such treatment and more particularly, he failed to mention that his treatment dates coincided with the hearing dates of the suit. It is in those circumstances, learned trial Court negatived the contention of the revision petitioner. In the present revision, learned counsel failed to explain as to how that approach of the learned trial Court is incorrect. It is not in dispute that the revision petitioner is a business man by his own showing and it is not the case of the petitioner that he abstained from attending his own business. According to him, he is a resident of Visakhapatnam where the litigation was going on and the hospital where he was statedly taking treatment situated at Chennai and he has been able to move from Visakhapatnam to Chennai and take treatment and come back to Visakhapatnam to attend his business. All these facts would show that his sickness is not one that disabled him from really contacting his learned counsel, who is available at a place where he has been living and doing his business. The affidavit of the petitioner filed before the trial Court as well as the grounds urged in this revision are vague and devoid of material particulars. In these circumstances, this Court has to say that the learned trial Court appropriately considered the facts and reached to appropriate conclusion about its dissatisfaction of cause offered 5 by the petitioner. This Court does not find any illegality or material irregularity in the order that is impugned in this revision. Therefore, the point is answered against the revision petitioner.
8. In the result, the Civil Revision Petition is dismissed and as a consequence, the impugned order dated 03.05.2019 passed by the learned I Additional District and Sessions Judge, Visakhapatnam in I.A.No.42 of 2018 in O.S.No.11 of 2011 stands confirmed. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 17.08.2022 Ivd 6 THE HON'BLE SRI JUSTICE Dr. V.R.K.KRUPA SAGAR CIVIL REVISION PETITION No.3396 of 2019 Date: 17.08.2022 Ivd