The vs Shantaram Baburao Patil And ...
2021 Latest Caselaw 3752 AP

             THE HONOURABLE SRI JUSTICE D.RAMESH

             CIVIL REVISION PETITION No.807 of 2021

ORDER:

The Petitioners are the defendants in the suit in

O.S.No.1721/2006 on the file of learned I Additional Junior Civil

Judge, Tirupati. Aggrieved by the orders passed in I.A.No.892/2016

in O.S.No.1721/2006, the present revision is filed.

2. I.A.No.892/2016 in O.S.No.1721/2006 is filed under section 5 of

Limitation Act praying the Court to condone the delay of 120 days in

filing the petition under Order IX Rule 13 CPC to set aside the exparte

decree passed against the petitioners/defendants on 22.4.2016.

3. The brief facts are the deceased 1st petitioner is the 1st

defendant in the suit and the plaintiff filed the suit against him for

declaration of title and delivery of possession. In the said suit, the

deceased petitioner has filed written statement. The suit was posted

on 07.4.2015 for trial on costs of Rs.200/- payable by the plaintiff to

the defendant and either the plaintiff nor her counsel represented the

matter. Hence, the Court below dismissed the suit for default on the

said date. Under the bonafide impression that the suit proceedings

were finally ended in his favour and by that time itself he is chronic

patient of paralysis with aged about 70 years and he is also

undergoing dialysis due to kidney failure, in view of the same, he is

forced to move to his son's house at Ambedkar Colony, Mangalam,

because no one is present to look after him at his house in

Satyanarayanapuram, Tirupati. He is taking regular medical

treatment at SVIMS, Tirupati due to his serious threat on his life. He

stated that the plaintiff filed E.P.No.38/2016 for delivery of possession

DR,J CRP.No.807 of 2021

and at that time he was admitted in hospital and he came to the

knowledge through his neighbours at Satyanarayanapuram about

filing of E.P by D.Hr and he do not know the year when he was in

hospital but at the time of decree in the year 2008 he was in hospital.

The respondents filed their counter denying the allegations made by

the deceased petitioner. The suit filed by the respondent/plaintiff for

mandatory injunction for removal of the structures constructed in the

plaint schedule property in the year 2006. After serving notice to the

defendant, he engaged an advocate and filed his written statement.

Thereafter the plaintiff commenced the trial on 30.8.2007 and posted

the matter for cross-examination on 13.9.2007. Thereafter at the

request of the defendant it was adjourned to 10.10.2007 and on

31.10.2007 for non-representation on behalf of the defendants and

finally the Court decreed the suit on 10.4.2008. Thereafter they have

filed E.P.No.336/2008 for delivery of possession. At this juncture, the

petitioners/defendants obstructed for the same and pressed into

service under Section 5 of Limitation in I.A.No.681/2009 and the

same was allowed and set aside the decree. The suit is restored to

file.

4. Even after restoration of the suit, the defendants evaded to

cross-examine the witness and as directed by the Court, substitute

service was ordered and accordingly, the matter is posted on

20.4.2016. Even on that day, defendants did not turn up and finally

the suit is posted to 22.4.2016 and on that day the suit is decreed

with costs and granted 3 months time for execution of the same. On

expiry of the said period, the respondent filed E.P.No.38/2016 for

delivery of possession. At that juncture, the petitioners filed the

DR,J CRP.No.807 of 2021

present I.A. for set aside the exparte order with a delay of 120 days.

Hence there are no bonafides on the part of the defendants. It is only

to defeat the rights of the petitioner, the respondents have

intentionally avoid receiving the notice and requested to dismiss the

I.A. Considering the pleadings and also the judgments relied on by

the counsel appearing on the Court below has passed the following

order:

"Hence, the contention raised by the petition is not at all supported by the contention raised by any documentary proof. The I.A.No.681/2009 is allowed on 31.02.2015 and the petitioner after receipt of summons has kept quiet for sufficient time and now they have come forward with the present petition without any sufficient and reasonable grounds. This court do not find any cogent evidence to condone the delay of 120 days as alleged by the petitioner and this Court is not satisfied with the reasons put forward by the petitioner to condone the delay and therefore, the petition deserves to be dismissed. Accordingly, the point is answered".

5. Aggrieved by the said orders, the present revision is filed.

Learned Counsel appearing on behalf of the petitioners contended that

the defendant is an aged person and he is taking medical treatment

regularly in view of the old age, he moved from his place i.e.

Satyanarayanapuram to his son's place at Ambedkar Colony,

Mangalam. By virtue of the same, the advocate could not be able to

contact the petitioner, hence he do not know about the restoration of

suit. He submits that initially the suit is decreed in the year 2008 and

later, the plaintiff filed E.P.No.366/2008 for delivery of possession and

knowing the same, the petitioner filed I.A.No.681/2009 and later the

same was allowed on 30.01.2015 and the petitioner has filed written

statement and the same was posted for settlement of issues on

05.02.2015. Subsequently, the matter got dismissed for non-

prosecution of the respondents and the petitioner is under bonafide

impression that the suit is dismissed against the petitioner. He do not

DR,J CRP.No.807 of 2021

know about the restoration of the suit because subsequently, he

admitted into the hospital and he has also undergone dialysis for

kidney problem. By virtue of his health condition, he has moved from

his place of residence to his son's place of residence and he has no

contact with the advocate. In view of the same, he does not know

about the restoration of the suit and further proceedings in the suit.

To support his contention, he has also filed medical record vide Ex.A1

to A8. For not knowing about the decree and the delay for filing the

set aside application is not intentional.

6. Learned Counsel appearing on behalf of the respondent has

submitted that the petitioners have deliberately avoiding the suit

proceedings. In fact, the suit is filed for declaration of title and

delivery of possession in the year 2006 and for non-cooperation at the

time of trial, the said suit was decreed on 10.4.2008 and after filing

E.P.No.38/2016, they have filed an application with a delay of 358

days and the said I.A. was allowed and the suit was restored and

though the petitioners sent the notices, the defendant evade the

notices purposefully and with no option, the respondent/plaintiff has

taken substitute service and the same was published in Saakshi daily

newspaper. Despite the same he has not turn up. Now after filing

the present E.P.No.38/2016 delivery of possession was ordered and at

that point of time and with a delay of 120 days, the present

application is filed. On perusal of the conduct of the defendant, it

clearly discloses that he wantonly dragging the matter. There are no

bonafides in the present application.

7. To support the rival contentions, learned Counsel for the

petitioners have relied on the judgment of the High Court of Andhra

DR,J CRP.No.807 of 2021

Pradesh in State of A.P., and another vs. Allu Swaminaidu and

others1 and also the judgment of the Hon'ble Supreme Court

reported in Vedabaialias Vaijayantabai Baburao Patil vs.

Shantaram Baburao Patil and others2. Learned Counsel for the

respondent/defendant relied on the judgment of the Hon'ble Supreme

Court reported in between Collector, Land Acquisition, Anantnag

vs. Katiji and others3 .

8. On perusal of the entire material though the respondent/plaintiff

filed the suit for declaration of title in the year 2006 even on earlier

occasion, the suit is decreed once and after restoration again the suit

is dismissed for non-prosecution by the respondent/plaintiff and again

the said suit was restored in the year 2015. After restoration of the

suit, the contention of the petitioners is that there is no information

with regard to the restoration of the suit. Hence there is no deliberate

intention to evade notices, though the respondents have taken

substitute notice but the same was not in the knowledge of the

petitioners. On perusal of the record, it clearly establishes that

though he has not admitted in the hospital, but there are evidences

that he is taking treatment since 2015 and as held by the Apex Court

and followed by High Courts in various judgments that in exercising

the discretion under section 5 of the Limitation Act, the court has to

adopt a pragmatic approach. In general, the courts have to follow the

principles of substantial justice only by way of disposing the matters

on merit after elaborate trial. No doubt in the instant case, on the

earlier occasion, there is default on both sides. But after restoration

of the suit in the year 2015, the reasons mentioned in the affidavit

ALT 2000(1) 444

AIR 2001 Supreme Court, 2582

AIR 1987 Supreme Court

DR,J CRP.No.807 of 2021

have to be taken into consideration. A lenient view and an

opportunity have to be given to the parties.

9. Considering the same, the orders passed by the Court below in

I.A.No.892/2016 in O.S.No.1721/2006 is set aside and the delay of

120 days is condoned and both parties are directed to cooperate and

the Court may dispose of the main suit on merits expeditiously within

six (06) months from the date of receipt of a copy of this order.

10. Accordingly, the Civil Revision Petition is allowed. There shall

be no order as to costs.

As a sequel thereto, the miscellaneous petitions, if any, pending

in this Petition shall stand closed.

________________ JUSTICE D. RAMESH

Date:24.9.2021 RD

DR,J CRP.No.807 of 2021

THE HONOURABLE SRI JUSTICE D.RAMESH

CIVIL REVISION PETITION No.807 of 2021

Dated 24.9.2021

RD