Andhra Pradesh High Court - Amravati
Judge vs 3) The Petitioner Is The 1St on 24 June, 2022
1
THE HON'BLE SRI JUSTICE BATTU DEVANAND
CIVIL REVISION PETITION NO.223 of 2022
O R D E R:
This Civil Revision Petition has been filed against the
order, dated 27.10.2021, passed in I.A.No.80 of 2020 in
O.S.No.438 of 2011, on the file of the I Additional Senior Civil
Judge, Nellore.
2) Heard Sri Shaik Muneer Basha, learned Counsel for the
Petitioner and perused the material available on record.
3) The Petitioner is the 1st defendant and the respondents
are the plaintiffs in O.S.No.438 of 2011 on the file of the I
Additional Senior Civil Judge, Nellore.
4) The learned counsel for the petitioner submits that the
plaintiffs filed the suit in O.S.No.438 of 2011 for partition of
the suit schedule properties into 7 equal shares and to allot
1/7th share each to them and for separate possession.
5) On behalf of the 1st defendant, written statement was
filed. After framing of the issues, the suit was posted for trial.
The remaining defendants other than the petitioner herein
remained exparte and the suit as against 3rd defendant was
dismissed.
6) The learned counsel for the petitioner submits that the
petitioner had a fracture and because of transfusing of blood,
he got an incurable disease and because of the same, he was
confined to bed and recently on 02.10.2019 with acute
breathlessness/fever intermittent on and off and generalized
myalgia and he was discharged on 03.10.2019. Thereafter, he
contacted his earlier counsel who was not in a position to find
out his file and having no other go he approached another
Advocate and obtained the certified copies of the case papers.
The petitioner came to know through those documents that on
behalf of the plaintiffs three witnesses were examined and
Exhibits A.1 to A.3 were marked and matter posted to
15.03.2018 to pass an exparte decree. Because of ill-health,
the petitioner could not prosecute the case and there are no
willful latches or intentional negligence on his part. The
application to set aside the exparte decree ought to have filed
on or before 14.04.2018, but due to ill-health, the petitioner
could not file the petition in time. After recovery, the
petitioner filed an application to set aside the exparte decree
along with delay condonation petition. There is a delay of 601
days caused in filing the application to set aside the exparte
decree.
7) The learned counsel for the petitioner further submits
that the trial Court without considering the reasons for delay
caused for filing the application to set aside the exparte
decree, dismissed the application erroneously, which is
unsustainable under law. The learned counsel submits that by
dismissing the application, the petitioner cannot be deprived of
his right of defence in contesting the suit and the petitioner
ought to have been given an opportunity by allowing the delay
condonation petition.
8) This Court carefully considered the arguments advanced
by the learned counsel for the petitioner and perused the
material available on record.
9) The suit is of the year 2011. After examining three
witnesses of the plaintiff and marking Exs.A1 to A3, the
defendants remained exparte. The trial Court was pleased to
pass an exparte decree on 15.03.2018. The trial Court
dismissed the application filed by the petitioner seeking
condonation of delay in filing the petition to set aside the
exparte decree on the ground that the petitioner did not file
any proof of document about his health condition and
hospitalization. As and when, the petitioner pleading about his
health condition and hospitalization for treatment, he has to
file relevant documents before the Court when he is seeking
condonation of delay. The trial Court also recorded the fact
that the petitioner filed I.A.No.350 of 2018 in O.S.No.438 of
2011 under Order 9 Rule 13 of Civil Procedure Code to set
aside the exparte decree and judgment, dated 15.03.2018.
The said petition was disposed of on merits on 06.06.2019. In
spite of that, the petitioner again filed the present
Interlocutory Application without referring about the
I.A.No.350 of 2018.
10) During the course of hearing, this Court asked the
learned counsel for the petitioner so as to why the fact of filing
of I.A.No.350 of 2018 and its disposal was not mentioned in
the affidavit filed in support of the present application. The
learned counsel for the petitioner could not submit any
cognizant reasons. As such, on this issue this Court cannot
find fault of finding of the trial Court. The petitioner has
suppressed the factual position.
11) Besides this, on careful perusal of the affidavit filed by
the petitioner along with this Civil Revision Petition and in the
affidavit filed along with I.A.No.80 of 2020 in the trial Court, in
our considered opinion, the petitioner failed to prove any
sufficient cause to satisfy the Court to condone the delay of
601 days in filing the application.
12) For the reasons stated above, in the considered opinion
of this Court, there are no merits in this Civil Revision Petition
for interference into the order passed by the trial Court.
13) Accordingly, this Civil Revision Petition is dismissed.
14) There shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in
this petition shall stand closed.
______________________
JUSTICE BATTU DEVANAND
Dt. 24.06.2022
PGR
THE HON'BLE SRI JUSTICE BATTU DEVANAND
C.R.P.NO.223 of 2022
Dt. 24-06-2022
PGR
