Andhra Pradesh High Court - Amravati
N Hemalatha, Chittoor Dist vs O Rama Chandra Naidu, Chittoor ... on 6 October, 2023
HON'BLE DR. JUSTICE K. MANMADHA RAO
CIVIL REVISION PETITION No.970 of 2016
ORDER :
This Civil Revision Petition has been filed against the
order dated 04.12.2015 passed in I.A.No.66 of 2013 in O.S
No.24 of 2009 on the file of Senior Civil Judge, Puttur.
2. The petitioner herein is the plaintiff and the
respondents are the defendants in O.S.No.24 of 2009 filed
on the file of Senior Civil Judge, Puttur (for short "the trial
Court") for declaration and the same was dismissed for
default vide judgment dated 18.09.2012. The present
impugned application in I.A No.66 of 2013 was filed under
Section 5 of Limitation Act to condone the delay of 66 days
in filing the petition to set aside the dismissal order dated
18.09.2012.
3. Heard Ms. K. V. Ramani, learned counsel
representing Mr. A. Eswar, learned counsel appearing for
the petitioner and Mr. V. Sudhakar Reddy, learned counsel
appearing for the respondents.
4. Learned counsel for the petitioner submits that the
order passed by the trial Court is illegal, arbitrary and
against all probabilities of the case. He further submits that
the trial Court grossly erred in not appreciating the facts
and circumstances of the case in a proper and prospective
manner. He further submits that the trial Court ought to
have seen that the petitioner was absent on that day due to
fever and ill health issues and could not attend the Court on
that particular day. He further submits that the trial Court
ought to have seen that a liberal approach must be taken in
condoning the delay where there are merits on the facts of
the case. He further submits that there is no willful or
wanton delay on the part of the petitioner and hence the
petitioner filed the impugned application before the trial
Court and the same was dismissed by the trial Court on the
ground that the petitioner did not explain the reasons for
the delay caused in filing the set aside dismissal order
petition. Aggrieved by the same, the present civil revision
petition came to be filed.
5. Per contra, learned counsel for the respondents
submits that the suit was filed for declaration and the plaint
schedule properties are self acquired properties of D1 and
D2 and they have sold the same in favour of D3 and D4 and
in turn, D3 and D4 sold the said property to D5 on
12.11.2008. He further submits that the revenue records
also have been mutated in the name of D5. The
petitioner/plaintiff intentionally did not come to witness
box, in spite of giving sufficient time, and as such, the trial
Court dismissed the suit and the petitioner has not
explained sufficient cause to condone the delay and
therefore the trial Court has rightly dismissed the petition.
6. On a perusal of the material available on record, it
is observed that the suit in O.S No.24 of 2009 was filed for
declaration and when the suit was posted to 18.9.2012 for
appearance of PW.1, he was absent, and as such, the trial
Court recorded PNR. PW.1 chief affidavit is eschewed and
suit was dismissed for default. Later, the petitioner/
plaintiff approached the trial Court by way of filing the
impugned application.
7. As seen from the impugned order, it is observed
that, the petitioner was suffering from fever, and as such
she was absent on 18.9.2012, but the petitioner did not
mention the reasons for delay of 66 days caused in filing the
petition. Except stating that the petitioner suffering from ill
health, there is no proof of record to that effect.
8. As per Section 5 of Limitation Act, court is
having ample power to set aside the ex pate provided the
other party is able to show sufficient cause.
9. The present impugned application IA No.66 of 2013
was filed under Section 5 of Limitation Act to condone the
delay of 66 days in filing the petition for restoration of the
suit which is filed for declaration. No doubt the petitioner
has not explained the reasons for the delay in her
application. But the Court should have considered the
same to meet the ends of justice, by imposing some costs.
10. Accordingly, the Civil Revision Petition is allowed.
The order dated 04.12.2015 passed in I.A.No.66 of 2013 in
O.S. No.24 of 2009 on the file of Senior Civil Judge, Puttur,
is hereby set aside. Further, the petitioner is directed to
pay costs of Rs.2,000/- (Rupees Two thousand only) to the
credit of O.S.No.24 of 2009 on the file of the trial Court.
11. Since the suit pertains to the year 2009, the trial
Court is directed to dispose of the same as expeditiously as
possible, preferably within a period of six (06) months from
the date of receipt of a copy of this order.
12. As a sequel, all the pending miscellaneous
applications shall stand closed.
______________________________
DR. K. MANMADHA RAO, J.
Date : 06 -10-2023
Gvl
HON'BLE DR. JUSTICE K. MANMADHA RAO
CIVIL REVISION PETITION No.970 of 2016
Date : 6 .10.2023
Gvl
