THE HON'BLE Ms. JUSTICE B. S. BHANUMATHI
Civil Revision petition Nos.23 & 3640 of 2018
COMMON ORDER:
C.R.P.No.3640 of 2018, under Section 115 of the Code of Civil
Procedure, 1908, is directed against the order, dated 13.06.2018, in
I.A.No.915 of 2017 in A.T.C.No.01 of 2016 on the file of the Court
Junior Civil Judge, Pattikonda, Kurnool District, whereas, C.R.P.No.23
of 2018 is directed against the execution proceedings initiated in
E.P.No.65 of 2017 in the above tenancy case.
2. Heard Sri C.M.R.Velu, learned counsel for the revision
petitioners/judgment debtors (JDrs) and Sri T.V.P. Sai Vihari, learned
counsel representing Sri M.M.M Srinivasa Rao, learned counsel and for
the respondents/decree holders (DHrs). The parties shall hereinafter
be referred to as JDrs., and DHrs., for convenience and clarity.
3. The facts, in brief, are that DHrs filed A.T.C.No.1 of 2016 against
the JDrs seeking eviction of the JDrs from the petition schedule
property and to deliver vacant possession of the same to the DHrs.
The case of the JDrs is that originally, the schedule property belonged
to Y. Krishna Murthy and Venugopal and they sold the same to their
parents on 22.04.1990 for consideration of Rs.8,000/- by way of
registered sale deed. However, the original registered sale deed was
lost and certified copy of the registered sale deed dated 22.04.1990
was filed. During the life time of their parents, the father of the DHrs
took possession of the schedule property on oral lease for
consideration of Rs.5,000/-. Subsequently, the father of the DHrs 2 BSB, J C.R.P.Nos.23 &3640 of 2018
died. Since then, the DHrs expressed their intention to cultivate the
land given on lease, being lessees. Thereafter, the DHrs not only
failed to pay arrears of rent of Rs.5,000/-, but also to vacate the
schedule property. Finally, on 21.04.2016, a legal notice was issued to
pay arrears of rental amount of Rs.5,000/- for the years 2015, 2016
and also to vacate and deliver possession of the schedule property. As
the DHrs failed to vacate the land, the eviction petition was filed. The
DHrs having received notices, did not appear before the Court.
(b) According to the JDrs., they have not received any summons
from the Court through postal department and as such, they could not
attend the proceedings. On behalf of the JDrs, PW1 was examined and
exhibits P1 to P6 were marked and on behalf of DHrs., neither any
witness was examined nor was any document marked. Accordingly,
ATC 1 of 2016 was allowed ex parte directing the JDrs to vacate and
deliver vacant possession of the schedule property to the DHrs. The
JDrs filed I.A.No.915 of 2017, under Section 5 of the Limitation Act, in
A.T.C.No.1 of 2016 to condone delay of 143 days in filing petition to
set aside the ex parte order, dated 19.07.2017. The DHrs filed counter
in the said interlocutory application contending that the JDrs are aware
of filing of the case and also passing of the ex parte order on
19.07.2017. They intentionally refused to receive the registered
notices and filed the present petition to drag on the matter. It is
further stated that only after the property was delivered by way of
'TOM TOM' in the village to the DHrs, the DHrs approached the M.R.O.,
Tuggali, for issuance of pattadar passbook and title deed in their
favour. The petition is liable to be dismissed. 3
BSB, J C.R.P.Nos.23 &3640 of 2018
4. The Court below dismissed the petition observing that the
notices were ordered to be served through Court and also by
registered post. The notices sought to be served through Court are
returned unserved with an endorsement that 'both the respondents
are non-residents'. The notices sent through registered post with
acknowledgment due were also returned unserved with an
endorsement 'refused'. Thus, the Court held that it cannot be said
that the respondents were unaware of filing of the ATC case and
further no proper explanation has been offered by the JDrs to condone
delay of 143 days. Thus, the Court dismissed petition.
5. Aggrieved by the order refusing to condone delay of 143 days in
filing petition to set aside the ex parte order, dated 19.07.2017, in
A.T.C.No.1 of 2016, C.R.P.No.3640 of 2018 is preferred. Being
aggrieved by the initiation of execution proceedings in E.P.No.65 of
2017 in A.T.C.No.1 of 2016, C.R.P.No.23 of 2018 was preferred.
6. Learned counsel for the revision petitioners/JDrs reiterated their
contention in the grounds of revision.
7. Learned counsel for the revision petitioners submitted that the
fact that the JDrs refused to take service of notice does not arise when
the notice sent through Court has been returned with an endorsement
"addressees are not residents". In this regard, he further submitted
that the documents filed along with this revision clearly show that both
the addressees are residing in Hyderabad being employees working in
Andhra Jyothi Broadcasting Pvt. Ltd. Therefore, learned counsel for
the respondents submitted that the revision petitioners cannot blow
hot and cold by saying in one way that the petitioners are employees 4 BSB, J C.R.P.Nos.23 &3640 of 2018
for long time even before filing of ATC and on the other hand, claim
that they are agriculturists and cultivating the land.
8. As could be seen from the reasons stated by the revision
petitioners in their petition before the Tribunal, there is no ground
taken that the service of notice was not affected as they were
residents of Hyderabad at that particular point of time. On the other
hand, now without laying any foundation, they urge that they have
been residing in Hyderabad and proceedings before the Tribunal were
not to their knowledge. Even before this Court, no plea was taken and
on the other hand, in the affidavit filed before the Tribunal (enclosed
to the petition) and also in the petition filed before this Court, the
address given is as shown in the petition filed in ATC, that is, address
at Pendekal RS village. But, now, they urge that they have been
residing at Hyderabad. If the revision petitions continue to reside in
Pendekal RS village, their contention that they are non-residents does
not stand good.
9. What is required to be seen to condone delay is 'sufficient
cause'. When the petitioners are not able to approach the Court with
genuine cause, which is sufficient to condone delay, they are not
entitled to get the delay condoned. The petitioners averred something
in the petition, but argued something else before this Court and the
same is not even argued before the Tribunal. As already pointed out,
it is not even their case in their petition.
10. Before parting, it is to be noted that it is also contended by the
learned counsel for the revision petitioners that the Court of Junior
Civil Judge has no jurisdiction to decide a petition under the provisions
of A.P (Andhra Area) Tenancy Act 1956. This ground is urged for the 5 BSB, J C.R.P.Nos.23 &3640 of 2018
first time during the course of argument without the same being taken
before the Tribunal or in the grounds of revision before this Court. Of
course, every Principal Court of Junior Civil Judge has been conferred
with the jurisdiction as Special Officer under the jurisdiction of the
Tenancy Act. May be due to mistake, the cause title of the Court must
have been shown without mentioning as the authority of Special
Officer, however, if there is any jurisdictional issue, the same could
have been urged before the same authority. In view of the challenge
made by the revision petitioners as to the jurisdiction of the Court of
Junior Civil Judge, similar issue was raised by the respondents
contending that this Court has no jurisdiction under Section 115 CPC in
respect of matters relating to the provisions of Tenancy Act and placed
reliance on a decision of a Division Bench of this Court in Muramalla
Ammanaraju v. Babba Seetaratnam 1 . Since this revision is not
filed against the final orders, but against an interlocutory order
applying the provision of Section 5 of the Limitation Act, the objection
taken in this regard is not tenable.
11. For the foregoing reasons, this Court finds that the revision
petitioners could not make out any case for condonation of delay.
Thus, there is no merit in C.R.P.No.3640 of 2018 and the same is
accordingly dismissed.
12. In view of dismissal of C.R.P.No.3640 of 2018, C.R.P.No.23 of
2018 shall also stand dismissed.
There shall be no order as to costs.
1 1993 (3) ALT 221 (D.B) 6 BSB, J C.R.P.Nos.23 &3640 of 2018
Miscellaneous petitions, if any, pending in these revisions shall
stand closed.
________________ B.S BHANUMATHI, J 02nd May, 2022 RAR
