Donepudi Venkata Satyanarayana vs Kothapalem Survey Number ...
2022 Latest Caselaw 5209 AP

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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

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

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

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

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

THE HON'BLE SRI JUSTICE Dr. V.R.K.KRUPA SAGAR

CIVIL REVISION PETITION No.3396 of 2019

Date: 17.08.2022

Ivd