HON'BLE SRI JUSTICE K. LAKSHMAN
CIVIL REVISION PETITION Nos.2485 AND 2446 OF 2022
COMMON ORDER:
Heard Mr. A. P. Suresh, learned counsel for the petitioners and
Mr. A. Giridhar Rao, learned senior counsel representing Mr. Palle
Srinivasa Reddy, learned counsel for the respondents in both the
revisions.
2. C.R.P. No.2485 of 2022 is filed by the petitioners challenging the order dated 08.07.2022 passed by the learned Principal District Judge at Mahabubnagar in I.A. No.827 of 2021 in O.S. No.12 of 2015 dismissing the petition to condone the delay of 1526 days in filing the application to set aside the order dated 19.04.2017 by restoring the suit. Whereas, C.R.P. No.2446 of 2022 is filed by the petitioners challenging the order dated 08.07.2022 passed by the very same Court in I.A. No.742 of 2021 in O.S. No.13 of 2015 dismissing the petition to condone the delay of 1526 days in filing the petition to set aside the order dated 19.04.2017 by restoring the suit.
3. Since the lis involved in both the revisions and the parties are one and the same, both the revisions were heard together and they are disposed of by way of common order.
2
KL, J C.R.P. Nos.2485 & 2446 of 2022
4. Originally, the petitioners in C.R.P. No.2485 of 2022 had filed a suit vide O.S.No.12 of 2015 against the respondents/ defendants seeking declaration of title declaring plaintiff No.1 as absolute owner in respect of suit schedules 'B', 'C' and 'D' properties, while plaintiff No.2 in respect of Schedule 'A' property situated at Ketireddipalli Village of Balanagar Mandal, Mahabubnagar District, by setting aside the judgment and decree dated 24.02.2014 passed in O.S. No.81 of 2013 by the learned VIII Additional District Judge, Mahabubnagar, and for cancellation of registered sale deed bearing document No.6158 of 2014, dated 07.11.2014 executed by the aforesaid Court in E.P.No.16 of 2014 and also for consequential perpetual injunction, against the respondents.
5. Whereas, the petitioners in C.R.P. No.2446 of 2022 had filed a suit vide O.S. No.13 of 2015 seeking the similar relief declaring plaintiff No.1 as absolute owner in respect of Schedule 'A' property, while plaintiff No.2 in respect of Schedule 'B' Property situated at the aforesaid Village by setting aside the judgment and decree dated 20.12.2013 passed in O.S. No.80 of 2013 by the learned VIII Additional District Judge, Mahabubnagar and for cancellation of 3 KL, J C.R.P. Nos.2485 & 2446 of 2022 registered sale deed bearing document No.6157 of 2014, dated 07.11.2014 executed by the said Court in E.P. No.15 of 2014.
6. However, both the aforesaid suits were dismissed for default on 19.04.2017.
7. The petitioners herein had filed I.A. Nos.827 and 742 of 2021 in O.S. Nos.12 and 13 of 2015 respectively seeking to condone the delay of 1526 days in filing the petition to set aside the dismissal order dated 19.04.2017 passed in the aforesaid suit by restoring the suits to its original position on the following grounds:
i) The petitioners reside at Hyderabad and they were remained in constant contact with their counsel, Mr. P. Prabhakar. However, they were not informed the status of the case;
ii) During the pendency of the aforesaid suits, plaintiff No.2 in O.S.12 of 2015, namely N. Kamalamma, elder sister of the petitioners died on 21.01.2016. Due to which, they went into complete depression and could not pursue the suits;4
KL, J C.R.P. Nos.2485 & 2446 of 2022
iii) In the month of January, 2020, petitioner No.1 verified the status of the suits online in the District Court website and came to know about the dismissal of the aforesaid suits on 19.04.2017. Then they approached their counsel on record and verified with him, on which their counsel gave evasive replies. Therefore, they have changed their advocate on record and appointed another advocate.
iv) They came to know about the dismissal order only during the month of January, 2020, but due to ongoing pandemic crises and their health conditions, they could not file the application to set aside the dismissal order in time. However, on the advice of newly engaged advocate, filed applications for setting aside the dismissal order dated 19.04.2017. Therefore, there is delay of 1526 days, and they sought to condone the said delay.
8. Respondent Nos.1 and 2 filed separate counters opposing the said petitions with the following grounds:
i) After dismissal of the aforesaid suits, petitioner No.1 filed an application on 21.01.2018 under Order XIII, Rule 5 KL, J C.R.P. Nos.2485 & 2446 of 2022
-7 (2) of the Code of Civil Procedure, 1908 (CPC) in both the suits for return of the documents and the same was allowed.
ii) In the affidavits filed in support of the aforesaid petitions, the petitioners mentioned about the dismissal of the suits on 19.04.2017 and that no appeal was preferred.
iii) In view of the above, the petitioners were having knowledge of dismissal of the suits by the date of filing the aforesaid petitions. Therefore, the plea taken by the petitioners that they came to know about the dismissal of the aforesaid suits only during the month of January, 2020 is incorrect and created for the purpose of filing the petitions to condone the delay.
iv) As the petitioners have filed an affidavit with false contents before the Court below, they are liable to be prosecuted for perjury.
9. After hearing both sides and considering the rival submissions, the trial Court, vide order dated 08.07.2022 relying on the principle laid down by the Hon'ble Supreme Court in Esha 6 KL, J C.R.P. Nos.2485 & 2446 of 2022 Bhattacharjee v. Raghunathpur Nafar Academy1 dismissed the petitions to condone the delay in both the suits, with the following reasons:
i) The petitioners were aware of the dismissal of the suits as on 16.02.2018, as they had filed an application under Order - XIII, Rule 7 (2) of the CPC on 16.02.2018 through their counsel Mr. Prabhakar, Advocate, wherein they have deposed in the affidavit that the suit was dismissed for default on 19.04.2017 and that no appeal was preferred and that no proceedings pending before any Court.
ii) The petitioners acted in utter negligence in not pursuing the suit proceedings by taking steps to restore.
iii) The petitioners approached the Court with mala fides.
iv) The petitioners have not shown 'sufficient cause' to condone the delay.
10. Challenging the said orders, the petitioners have filed the present revisions with the following grounds: 1
. (2013) 12 SCC 649 7 KL, J C.R.P. Nos.2485 & 2446 of 2022
i) The trial Court failed to appreciate the reasons for the delay caused in filing the petitions to set aside the order dated 19.04.2017.
ii) The trial Court failed to appreciate the fact that the suit was posted for trial on 04.04.2017 on which day the Presiding Officer was on lease, it was posted to 10.04.2017 and again posted to 19.04.2017, on which day, strangely, the suit was dismissed for non-appearance of the petitioners.
iii) The trial Court also failed to appreciate that the suit was dismissed on 19.04.2017 solely due to intentional non- representation of the counsel on record, Mr. P. Prabhakar, Advocate.
iv) Regarding filing of petition under Order XIII, Rule 7 (2) of the C.P.C., the petitioners would submit that their advocate Mr. P. Prabhakar on the pretext of taking back the original land documents from the Court prepared the petition and affidavit and in fact, the petitioners had no knowledge of dismissal of the suit by that time and they were kept in dark by their counsel on record.
8
KL, J C.R.P. Nos.2485 & 2446 of 2022
11. The respondents have filed counter reiterating their stand taken in the counter filed before the trial Court.
12. Even learned counsel on either side argued at length reiterating their contentions taken in the affidavit filed in support of the petition to condone the delay as well as in the counter, as mentioned above.
13. Mr. A.P. Suresh, learned counsel for the petitioners, would submit that the petitioners in both the revisions believed their counsel, Mr. P. Prabhakar, and they were under the impression that the suits were not dismissed for default. They have filed the aforesaid interlocutory application to return the documents and they have signed the petitions without knowing that the suits were dismissed for non- prosecution.
14. Referring to the docket proceedings, he would further submit that vide docket order dated 17.01.2017, the trial Court recorded the statement of learned counsel for the petitioners that the plaintiffs are not showing interest in pursuing the litigation and, therefore, the trial Court directed them to appear in the Court and adjourned the matter to 31.01.2017. From 31.01.2017, it was 9 KL, J C.R.P. Nos.2485 & 2446 of 2022 adjourned to 14.02.2017 for framing issues. On 27.03.2017, the trial Court had framed issues and adjourned the matter to 04.04.2017 for trial, on which day, the Presiding Officer was on leave and the matter was adjourned to 10.04.2017. On 10.04.2017, at the request, it was adjourned to 19.04.2017 for trial. On 19.04.2017, recording the absence of the petitioners/plaintiffs, the trial Court dismissed the suits for default without costs. Thus, learned counsel would submit that the petitioners' counsel before the Court below kept them in dark without informing the correct status of the suits. With regard to the appearance as ordered by the trial Court, learned counsel would submit that the counsel before the trial Court had not informed all the said facts and, therefore, the petitioners did not appear before the trial Court. Thus, the petitioners in both the revision are throwing the blame on their counsel Mr. P. Prabhakar.
15. It is relevant to note that in the counter filed by the respondents in the present revisions, it is specifically contended that the petitioners are not illiterates. Petitioner No.1 is a graduate and petitioner No.2 is a Post-graduate. There is no denial with regard to the same by the petitioners by filing reply to the counter. Therefore, petitioner No.1 i.e., Smt. Devulapalli Sudha is a Graduate, while 10 KL, J C.R.P. Nos.2485 & 2446 of 2022 petitioner No.2 in CRP No.2446 of 2022, Smt. K. Rama Devi is a Post-graduate. The petitioners have not disputed the fact that they have signed the affidavit filed in support of the petition filed under Order - XIII, Rule - 7 (2) of the C.P.C. seeking to return of the documents. In the affidavit filed in support of the said petition under Order XIII, Rule - 7 (2) of the C.P.C., the petitioners have specifically mentioned about filing of the suit, relief sought therein and dismissal of the same on 19.04.2017. They have also mentioned that thereafter they have not prosecuted the said suit by way of an appeal or by any method and there is no prohibitory order with regard to the suit proceedings. It is further mentioned that since there are no proceedings pending with regard to the said suit, that the said suit was dismissed and no appeal or any other proceedings are pending before the Court or in any appellate Court and that the petitioners are in need of the documents shown in the affidavit for their family purpose. With the said contentions, they sought the return of the said documents.
16. It is also relevant to note that it is specifically contended that respondent No.1 had purchased the property through an 11 KL, J C.R.P. Nos.2485 & 2446 of 2022 agreement of sale from respondent No.2, and thereafter filed suits vide O.S.Nos.81 and 80 of 2013 for specific performance. The same were decreed, execution petitions were filed and registered sale deeds were executed in their favour. On the applications filed by respondent No.1 in both the revisions, the Tahsildar has mutated their names in the revenue records. Before the Tahsildar, the petitioners have filed objections, and on consideration of the same, the Tahsildar vide order dated 13.08.2015 mutated the name of respondent No.1 in both the revisions in the revenue records.
17. Questioning the same, the petitioners have addressed a letter dated 06.10.2015 to the Joint Collector and the same was taken as suo-motu revision vide Case No.D1/72/2015. In the said revision, respondent No.1 has filed a memo by bringing to the notice of the Joint Collector about filing of the aforesaid suits and dismissal of the same on 19.04.2017. On consideration of the said facts, the Joint Collector, vide order dated 16.12.2019, set aside the order dated 13.08.2015 passed by the Tahsildar. In the said order, the Joint Collector has also specifically mentioned about the dismissal of the suits on 19.04.2017 itself. The petitioners herein have also engaged 12 KL, J C.R.P. Nos.2485 & 2446 of 2022 an advocate before the Joint Collector. Challenging the order in so far as case N.D1/72/2015, respondent No.1 in both the revisions, have filed a writ petition vide W.P. No.273 of 2020, wherein the petitioners herein have also specifically contended about the dismissal of the aforesaid two suits on 19.04.2017. The petitioners herein have engaged an advocate and filed counter and vacate stay petition. On consideration of the same, this Court, vide order dated 01.11.2021 allowed the said writ petition in part. In the said order, there is specific mention about the dismissal of the aforesaid suits on 19.04.2017. Despite the aforesaid facts, the petitioners herein are now blaming their earlier counsel, Mr. P. Prabhakar, sought condonation of 1526 days in filing the petition to set aside the dismissal order dated 19.04.2017.
18. It is also relevant to note that in the affidavit filed in support of the petitions in I.A. Nos.827 and 742 of 2021 in paragraph No.5, they have specifically mentioned that during the month of January, 2020, they have verified the status of the suits online through Mahabubnagar District Court Website and came to know about the dismissal of the suits on 19.04.2017. Thus, there is delay of 1½ years 13 KL, J C.R.P. Nos.2485 & 2446 of 2022 almost in filing the condone delay petition. There is no explanation, much less plausible explanation with regard to the delay from January, 2020 to July, 2021 by the petitioners. However, they are trying to take shelter under COVID-19 pandemic and also that both the orders are contrary to each other.
19. As discussed above, both the petitioners are graduate and post-graduates respectively. They are in a position to verify the status of the suits through online. They have also mentioned the site address. They are not illiterates. Having signed in the application filed under Order - XIII, Rule - 7(2) of the CPC seeking to return the documents, having gone to the Court for the purpose of receiving the said documents, and singed in the Register maintained by the Court in proof of receipt of the documents, now they cannot throw the blame on their counsel, Mr. P. Prabhakar. They cannot contend that they do not have knowledge of dismissal of the suits on 19.04.2017.
20. As discussed above, the petitioners have also filed counter affidavit along with vacate stay petition in the aforesaid W.P. No.273 of 2020. In the counter affidavit, the petitioners herein had mentioned about the dismissal of the aforesaid suits on 19.04.2017. Therefore, 14 KL, J C.R.P. Nos.2485 & 2446 of 2022 according to this Court, both the petitioners are having knowledge of dismissal of the aforesaid suits on 19.04.2017. They have invented the plea that their counsel, Mr. P. Prabhakar did not furnish the information to them about the dismissal of the suits on 19.04.2017, only for the purpose of filing the present petitions seeking to condone the delay. The said contention taken by the petitioners is factually incorrect. The petitioners have not approached the trial Court with clean hands and they have filed affidavit with false statement. The said facts were considered by the trial Court in the impugned order.
21. It is also relevant to note that, even according to the petitioners, they came to know about dismissal f the suits only in the month of January, 2020. But, they have filed the aforesaid interlocutory application only on 19.07.2021. Thus, there is delay of almost ne and half years. There is no explanation, much less plausible explanation to the said delay. Thus, viewed from any angle, the present revisions are liable to be dismissed.
22. In view of the aforesaid discussion, the petitioners failed to make out any ground to interfere with the impugned order. The order under revisions is reasoned order and well-founded and it does not 15 KL, J C.R.P. Nos.2485 & 2446 of 2022 warrant any interference by this Court by exercising its superintendence jurisdiction under Article - 227 of the Constitution of India. Thus, both the revisions fail and the same are liable to be dismissed.
23. Both the Civil Revision Petitions are accordingly dismissed. However, in the circumstances of the case, there shall be no order as to costs.
As a sequel, the miscellaneous petitions, if any, pending in the revisions shall stand closed.
_________________ K. LAKSHMAN, J 30th November, 2022 Mgr