THE HON'BLE Ms. JUSTICE B. S. BHANUMATHI
Civil Revision petition Nos.23 & 3640 of 2018
COMMON ORDER:
C.R.P.No.3640 of 2018, under Section 115 of the Code of Civil
Procedure, 1908, is directed against the order, dated 13.06.2018, in
I.A.No.915 of 2017 in A.T.C.No.01 of 2016 on the file of the Court
Junior Civil Judge, Pattikonda, Kurnool District, whereas, C.R.P.No.23
of 2018 is directed against the execution proceedings initiated in
E.P.No.65 of 2017 in the above tenancy case.
2. Heard Sri C.M.R.Velu, learned counsel for the revision
petitioners/judgment debtors (JDrs) and Sri T.V.P. Sai Vihari, learned
counsel representing Sri M.M.M Srinivasa Rao, learned counsel and for
the respondents/decree holders (DHrs). The parties shall hereinafter
be referred to as JDrs., and DHrs., for convenience and clarity.
3. The facts, in brief, are that DHrs filed A.T.C.No.1 of 2016 against the JDrs seeking eviction of the JDrs from the petition schedule property and to deliver vacant possession of the same to the DHrs. The case of the JDrs is that originally, the schedule property belonged to Y. Krishna Murthy and Venugopal and they sold the same to their parents on 22.04.1990 for consideration of Rs.8,000/- by way of registered sale deed. However, the original registered sale deed was lost and certified copy of the registered sale deed dated 22.04.1990 was filed. During the life time of their parents, the father of the DHrs took possession of the schedule property on oral lease for consideration of Rs.5,000/-. Subsequently, the father of the DHrs 2 BSB, J C.R.P.Nos.23 &3640 of 2018 died. Since then, the DHrs expressed their intention to cultivate the land given on lease, being lessees. Thereafter, the DHrs not only failed to pay arrears of rent of Rs.5,000/-, but also to vacate the schedule property. Finally, on 21.04.2016, a legal notice was issued to pay arrears of rental amount of Rs.5,000/- for the years 2015, 2016 and also to vacate and deliver possession of the schedule property. As the DHrs failed to vacate the land, the eviction petition was filed. The DHrs having received notices, did not appear before the Court.
(b) According to the JDrs., they have not received any summons from the Court through postal department and as such, they could not attend the proceedings. On behalf of the JDrs, PW1 was examined and exhibits P1 to P6 were marked and on behalf of DHrs., neither any witness was examined nor was any document marked. Accordingly, ATC 1 of 2016 was allowed ex parte directing the JDrs to vacate and deliver vacant possession of the schedule property to the DHrs. The JDrs filed I.A.No.915 of 2017, under Section 5 of the Limitation Act, in A.T.C.No.1 of 2016 to condone delay of 143 days in filing petition to set aside the ex parte order, dated 19.07.2017. The DHrs filed counter in the said interlocutory application contending that the JDrs are aware of filing of the case and also passing of the ex parte order on 19.07.2017. They intentionally refused to receive the registered notices and filed the present petition to drag on the matter. It is further stated that only after the property was delivered by way of 'TOM TOM' in the village to the DHrs, the DHrs approached the M.R.O., Tuggali, for issuance of pattadar passbook and title deed in their favour. The petition is liable to be dismissed. 3
BSB, J C.R.P.Nos.23 &3640 of 2018
4. The Court below dismissed the petition observing that the notices were ordered to be served through Court and also by registered post. The notices sought to be served through Court are returned unserved with an endorsement that 'both the respondents are non-residents'. The notices sent through registered post with acknowledgment due were also returned unserved with an endorsement 'refused'. Thus, the Court held that it cannot be said that the respondents were unaware of filing of the ATC case and further no proper explanation has been offered by the JDrs to condone delay of 143 days. Thus, the Court dismissed petition.
5. Aggrieved by the order refusing to condone delay of 143 days in filing petition to set aside the ex parte order, dated 19.07.2017, in A.T.C.No.1 of 2016, C.R.P.No.3640 of 2018 is preferred. Being aggrieved by the initiation of execution proceedings in E.P.No.65 of 2017 in A.T.C.No.1 of 2016, C.R.P.No.23 of 2018 was preferred.
6. Learned counsel for the revision petitioners/JDrs reiterated their contention in the grounds of revision.
7. Learned counsel for the revision petitioners submitted that the fact that the JDrs refused to take service of notice does not arise when the notice sent through Court has been returned with an endorsement "addressees are not residents". In this regard, he further submitted that the documents filed along with this revision clearly show that both the addressees are residing in Hyderabad being employees working in Andhra Jyothi Broadcasting Pvt. Ltd. Therefore, learned counsel for the respondents submitted that the revision petitioners cannot blow hot and cold by saying in one way that the petitioners are employees 4 BSB, J C.R.P.Nos.23 &3640 of 2018 for long time even before filing of ATC and on the other hand, claim that they are agriculturists and cultivating the land.
8. As could be seen from the reasons stated by the revision petitioners in their petition before the Tribunal, there is no ground taken that the service of notice was not affected as they were residents of Hyderabad at that particular point of time. On the other hand, now without laying any foundation, they urge that they have been residing in Hyderabad and proceedings before the Tribunal were not to their knowledge. Even before this Court, no plea was taken and on the other hand, in the affidavit filed before the Tribunal (enclosed to the petition) and also in the petition filed before this Court, the address given is as shown in the petition filed in ATC, that is, address at Pendekal RS village. But, now, they urge that they have been residing at Hyderabad. If the revision petitions continue to reside in Pendekal RS village, their contention that they are non-residents does not stand good.
9. What is required to be seen to condone delay is 'sufficient cause'. When the petitioners are not able to approach the Court with genuine cause, which is sufficient to condone delay, they are not entitled to get the delay condoned. The petitioners averred something in the petition, but argued something else before this Court and the same is not even argued before the Tribunal. As already pointed out, it is not even their case in their petition.
10. Before parting, it is to be noted that it is also contended by the learned counsel for the revision petitioners that the Court of Junior Civil Judge has no jurisdiction to decide a petition under the provisions of A.P (Andhra Area) Tenancy Act 1956. This ground is urged for the 5 BSB, J C.R.P.Nos.23 &3640 of 2018 first time during the course of argument without the same being taken before the Tribunal or in the grounds of revision before this Court. Of course, every Principal Court of Junior Civil Judge has been conferred with the jurisdiction as Special Officer under the jurisdiction of the Tenancy Act. May be due to mistake, the cause title of the Court must have been shown without mentioning as the authority of Special Officer, however, if there is any jurisdictional issue, the same could have been urged before the same authority. In view of the challenge made by the revision petitioners as to the jurisdiction of the Court of Junior Civil Judge, similar issue was raised by the respondents contending that this Court has no jurisdiction under Section 115 CPC in respect of matters relating to the provisions of Tenancy Act and placed reliance on a decision of a Division Bench of this Court in Muramalla Ammanaraju v. Babba Seetaratnam 1 . Since this revision is not filed against the final orders, but against an interlocutory order applying the provision of Section 5 of the Limitation Act, the objection taken in this regard is not tenable.
11. For the foregoing reasons, this Court finds that the revision petitioners could not make out any case for condonation of delay. Thus, there is no merit in C.R.P.No.3640 of 2018 and the same is accordingly dismissed.
12. In view of dismissal of C.R.P.No.3640 of 2018, C.R.P.No.23 of 2018 shall also stand dismissed.
There shall be no order as to costs.
1 1993 (3) ALT 221 (D.B) 6 BSB, J C.R.P.Nos.23 &3640 of 2018 Miscellaneous petitions, if any, pending in these revisions shall stand closed.
________________ B.S BHANUMATHI, J 02nd May, 2022 RAR