Andhra Pradesh High Court - Amravati
Infant Jesses Educations Society vs Kondaveeti Flora Magdalene Marry on 5 May, 2023
THE HON'BLE DR. JUSTICE K.MANMADHA RAO
CIVIIL REVISION PETITION No. 331 OF 2019
ORDER:
This Civil Revision Petition is filed under Article 227 of
Constitution of India, aggrieved by the order in I.A.No.517 of
2016 in O.S.No.227 of 2009, dated 23.01.2019 passed by the
Principal Senior Civil Judge at Nellore.
2. The brief facts of the case are that the petitioner
herein is the 2nd defendant and the respondent Nos. 1 and 2
herein are the plaintiffs, who filed the suit in O.S.No.227 of
2009 for declaration of their title over the schedule property
and to deliver possession and for mandatory injunction before
the Court of Principal Senior Civil Judge, Nellore (for short
"the Court below") against the petitioner herein. The said suit
was made exparte decree by Judgment dated 09.03.2016.
Subsequently, the petitioner filed the I.A.No.517 of 2016
under section 5 of the Limitation Act before the Court below
to condone the delay of 69 days to set aside exparte 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 Sri Sai Gangadhar Chamarthy, learned
counsel for the petitioner and Sri Kambhampati Ramesh Babu,
learned counsel for the respondents.
5. During hearing, the learned counsel for the
petitioner submits that the trial Court erred in discussing the
merits of the pleadings of the parties in disposing the
application filed under Section 5 of the Limitation Act and the
trial Court have adopted the pedantic approach instead of
pragmatic approach in the light of dispute over the immovable
property and the trial Court ought to have been that the 1 st
defendant died, thus the will come into operation and the trial
Court have to see that unless the defendant entered into
witness box the question of filing copies of will would not
arise, hence, prays this Court to allow this Revision Petition.
On the other hand, the learned counsel for the
respondents reiterated the averments of counter in trial
Court.
6. While advancing arguments, the learned counsel
for the respondents reported that the respondents has no
objection, to condone the delay of 69 days in filing the
petition under Order 9 Rule 13 of the C.P.C., to set aside the
exparte decree passed against the petitioner/2nd defendant
herein.
7. In view of the submissions of both the counsels
and in view of the principles laid down under Section 5 of the
Limitation Act, this Court is of the opinion that an opportunity
must be given to the petitioner to defend his case and as
such, this Revision Petition has to be allowed.
8. Accordingly, this Revision Petition is allowed. The
order dated 23.01.2019 passed in I.A.No.517 of 2016 in
O.S.No.227 of 2009 by the trial Court, is hereby set aside
subject to condition that the petitioner deposits the suit
costs to the credit of O.S.No.227 of 2009, in trial Court
within three (03) weeks from the date of receipt of a copy
of the order.
Miscellaneous Petitions pending, if any, in this case
shall stand closed. No order as to costs.
____________________
DR.K.MANMADHA RAO, J
05.05.2023
MNR
THE HON'BLE DR. JUSTICE K.MANMADHA RAO
CIVIL REVISION PETITION No. 331 OF 2019
05.05.2023
MNR
