D.Padmanabha Chetty vs K.Chandana
2023 Latest Caselaw 2197 AP

   THE HON'BLE DR. JUSTICE K.MANMADHA RAO

     CIVIIL REVISION PETITION No. 6980 OF 2018


ORDER:

This Civil Revision Petition is filed under Article 227 of

Constitution of India, aggrieved by the order in I.A.No.453 of

2017 in O.S.No.499 of 2011, dated 28.08.2018 passed by the

I Additional Junior Civil Judge, Chittoor.

2. The brief facts of the case are that the petitioner

herein is the defendant and the respondent herein is the

plaintiff, who filed the suit in O.S.No.499 of 2011 for partition

before the Court of I Additional Junior Civil Judge, Chittoor

(for short "the Court below") against the respondent herein.

The said suit was made exparte preliminary decree by

Judgment dated 13.07.2012. Subsequently, the petitioner

filed the I.A.No.453 of 2017 under section 5 of the Limitation

Act before the Court below to condone the delay of 5 years

and 6 days to set aside exparte preliminarily decree. After

hearing both sides, the Court below dismissed the said

application. Challenging the said order, the present Civil

Revision Petition came to be filed.

4. Heard Ms. C.Jhansi Rani, learned counsel for the

petitioner and Sri K.Sivaram Prasad, learned counsel for the

respondent.

5. During hearing, the learned counsel for the

petitioner submits that the petitioner explained sufficient

reasons to the Court below to condone the delay. In that suit,

only preliminary decree was passed and final Decree is

pending.

On the other hand, the learned counsel for the

respondent opposed the contentions of the petitioner.

6. On perusal of the record, the admitted facts are

that the petitioner herein is known about the filing of the suit

by his own sister i.e., respondent herein for partition of the

suit schedule property. He also engaged one Advocate viz.,

Mr.C.R.Mohan to defend his case. Subsequently, the matter

was referred to Lok Adalat on 15.02.2012.

7. It is pertinent to mention here that under Section

5 of Limitation act, Court is having ample power to set aside

the ex parte provided the other party is able to show

sufficient cause.

8. A perusal of the material, the petitioner counsel

contended that the Advocate or his clerk did not inform about

the case status to the petitioner. But whatever the reason

stated by the petitioner is not acceptable, because when the

case is pending before the Court, it is his bounden duty to

approach his advocate to know the status of his case.

9. The other contention taken by the petitioner is

that since 15.02.2012, he has no knowledge about the suit

proceedings, as he was suffered with viral Hepatitis and

Anemic, thereby the defendant got mental depression and

mental disorder and for that disease he underwent treatment

from 15.04.2012 to 10.03.2017. As per Ex.P1-Medical

Certificate dated 10.03.2017 the doctor stated that the

defendant was suffering from Viral Hepatitis and Anemic on

10.03.2017. It shows that the Doctor also not certified that

he was suffering with the Viral Hepatitis and Anemic from

15.04.2012 to 10.03.2017 and he gave treatment to him for

his disease. Nowhere, it is not mentioned by the petitioner

that whether he was admitted as in patient or not for taking

treatment for all these days. Though, the petitioner deposed

in his affidavit that he got mental depression and disorder,

due to that illness, there is no chance to forget his case. If

really, the petitioner is having interest to succeed in this

petition, he should prove the delay of all these days by

adducing cogent evidence i.e., by examining the Doctor who

issued the Ex.P1 certificate and by producing relevant

medicine prescriptions etc., documents to show that he has

been suffering with mental disorder, as such, he could not

proceed with his case. Moreover, it is not the case of the

petitioner that he took treatment as inpatient in that hospital

for all these days. As per the Ex.P1-Medical Certificate, he

was suffering with mental disorder on 10.03.2017 only. So,

remaining all those days he has perfect sound health and fit in

manner.

10. Admittedly, the respondent is none other than the

daughter of the petitioner. In a suit for partition, these

dramas are common when the property value are hike and

this Court feels that to avoid share to the respondent who is

own daughter to him and to drag the matter for some more

years, the petitioner came with the concocted story.

11. Upon considering the facts and circumstances of

the case, and on perusal of the material available on record,

this court finds no illegality in the order of the Court below

and there are no merits found in this case to allow this Civil

Revision Petition, and deserves to be dismissed.

12. Accordingly, this Civil Revision Petition is

dismissed. There shall be no order as to costs.

Miscellaneous Petitions pending, if any, in this case

shall stand closed. No order as to costs.

____________________ DR.K.MANMADHA RAO, J 21.04.2023 MNR

THE HON'BLE DR. JUSTICE K.MANMADHA RAO

CIVIL REVISION PETITION No. 6980 OF 2018

21.04.2023

MNR