HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
C.R.P.No.279 of 2021
ORDER:
The petitioner had filed O.S.No.77 of 2014 before the IV Additional
District Judge, Tirupati, against the respondents herein for specific
performance of an agreement of sale dated 11.07.2009. The respondent
filed their written statement and the matter came for trial. However, the
petitioner did not proceed with the trial on 03.12.2015, 11.03.2016,
06.06.2016, 20.10.2016, 09.02.2017, 08.06.2017, 17.08.2017,
22.01.2018, 19.04.2018 and 27.06.2018 when the suit was dismissed for
default.
2. The petitioner had then moved the trial Court by way of
I.A.No.492 of 2018, under Order IX Rule 9 C.P.C., and Section 151 C.P.C.,
for setting aside the said ex parte order. The reason given by the
petitioner for non-prosecution of the case was that as the petitioner had
gone to Bangalore on the said dates he could not give his evidence and
his counsel, who was representing him, was engaged in another Court, as
such he could not appear before the Court.
3. This application was contested by the respondents and was
dismissed by the trial Court by an order dated 21.08.2019.
4. Aggrieved by the same, the petitioner has approached this
Court by way of the present civil revision petition.
5. At the outset, the learned counsel for the respondent
contended that the revision petition is not maintainable under Article 227
of the Constitution of India as the petitioner had adequate alternative
remedy of appeal under Order XLIII Rule 1(c) of C.P.C., and relied upon 2 RRR,J C.R.P.No.279 of 2021
the judgment of the Hon'ble Supreme Court in the case of Miss Maneck
Gustedji Burjarji vs. Sarafazali Nawabali Mirza1 and a judgment of
the learned Single Judge of this Court in Nallolla Rajaiah and Ors., vs.
Praga Tools Officers Co-operative Housing Society, Kawadiguda,
Secunderabad and Ors.,2
6. In reply to the said objection, the learned counsel for the
petitioner relied upon the judgment of the learned Single Judge of this
Court in The Divisional Forest Officer, Chittoor (East) Division,
Chittoor vs. The Principal Subordinate Judge, Tirupati and Ors.,3.
7. A perusal of the above judgments would show that the said
judgment do not place a complete bar on the maintainability of the
applications under Article 227 of the Constitution of India even if there is
an alternative remedy of appeal under the Code of Civil Procedure or any
other alternative remedy. The principle laid down in all the said judgments
is that a petition filed under Article 227 of the Constitution can be
considered by this Court only where there is an extraordinary situation or
where there is manifest injustice caused to the petitioner.
8. In the present case, the learned counsel for the petitioner
would submit that the petitioner had a genuine difficulty in appearing
before the Court on the date of dismissal and that the said order of
dismissal was effectively barring the petitioner from protecting his rights.
9. The learned counsel for the petitioner would also submit that
the petitioner had already paid the entire sale consideration of Rs.20 lakhs
to the respondent and only action left was the execution of a sale deed
1 (1977) 1 SCC 227 2 2004 (5) ALD 238 3 1995 (3) ALT 324 3 RRR,J C.R.P.No.279 of 2021
which was not being done by the respondents, who are seeking to obtain
benefit out of the ex parte order passed by the trial Court.
10. Sri Rahul Chowdary, learned counsel appearing for Smt. S.
Pranathi learned counsel for the respondents would draw the attention of
this Court to the written statement filed by the respondents, which clearly
denied the execution of documents by the respondents and set out
reasons why the respondents denied the execution of the said agreement
of sale.
11. In the present case, as rightly pointed out by the learned
counsel for the respondents an extraordinary situation of manifest
injustice requires to be made out before this Court would entertain a
petition under Article 227 of the Constitution of India.
12. The docket proceedings of the trial Court clearly show that
the petitioner has not been cooperating with the Court in the conduct of
trial of the suit. Further, while the order of dismissal is dated 21.08.2019,
the application for certified copy of the said order was said to have been
made only in February, 2021. Learned counsel for the petitioner submits
that as the earlier copy was misplaced, a second copy was taken
subsequently. However, the fact remains that no steps were taken from
August, 2019 to March, 2020 when the Covid-19 Pandemic was started
and when the suit was dismissed.
13. In the circumstances, I do not find any reason to entertain
this application under Article 227 of the Constitution of India. Any
observation made in this order shall not be taken into account in any
further proceedings that may be initiated by the petitioner.
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C.R.P.No.279 of 2021
14. Accordingly, the civil revision petition is dismissed. There
shall be no order as to costs. As a sequel, pending miscellaneous
petitions, if any, shall stand closed.
_________________________ R. RAGHUNANDAN RAO, J.
5th January, 2022 Js.
5 RRR,J
C.R.P.No.279 of 2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
C.R.P.No.279 of 2021
5th January, 2021
Js.
