Andhra Pradesh High Court - Amravati
Tata Venkateswaramma vs Devarajugattu Sivanarayana on 21 August, 2024
APHC010221042024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3311]
(Special Original Jurisdiction)
WEDNESDAY ,THE TWENTY FIRST DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE MS JUSTICE B S BHANUMATHI
CIVIL REVISION PETITION NO: 1082/2024
Between:
Tata Venkateswaramma and Others ...PETITIONER(S)
AND
Devarajugattu Sivanarayana and Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. K RAMA KOTESWARA RAO
Counsel for the Respondent(S):
1. RAMA CHANDRA RAO GURRAM
The Court made the following:
O R D E R:
This Civil Revision Petition is filed under Section 115 CPC against
the order dated 08.04.2024 dismissing petition in I.A. No. 30 of 2022 in
O.S. No.123 of 2013 on the file of the Court of the Civil Judge (Senior
Division),
on), Repalle, Guntur District filed by the petitioners/defendants
defendants
under Section 5 of Limitation Act, 1963 to condone the delay of 1803
days in filing the petition to set aside ex parte decree dated 05.08.2014.
2. The brief averments in the petition are as follows:
The case of the petitioners/ defendants is that she is the 1 st
petitioner herein and 1st defendant in the suit and 2nd and 3rd petitioners/
defendants are her sons. She is giving her affidavit on behalf of her
sons 2nd and 3rd petitioners/ defendants. Respondents/ plaintiffs filed
false suit against the petitioners/ defendants for declaration for wrongful
gain. After receipt of summons, they engaged their counsel and filed
vakalat on their behalf. The suit is posted to 25.07.2014 for filing of
written statement on their behalf. Their counsel informed the same to
them. On that day, their counsel was not in town because of his
personal inconvenience for which the counsel's clerk asked time for
filing written statement but the Court did not grant time, but the
defendant set ex parte. Later, the suit was adjourned for filing proof
affidavits. On 05.08.2014, she and her sons went to Nellore District for
agricultural works due to which they were unable to consult their
counsel. The fact that the Court passed ex parte decree against them
was known to them after three years. They approached their counsel.
Their counsel could not file the petition to set aside the ex parte decree,
due to his child's ill-health. They have a good case to win as they have
been in possession and enjoyment of the schedule property for 26
years without any interruption till today. The schedule property was
purchased by the father of the 1st petitioner in 1993 from the plaintiffs by
way of possessory agreement due to which panchayat authority also
issued assessment number in favour of the petitioners. The
respondents/plaintiffs have no right over the schedule property. There is
no willful negligence on their part for not filing written statement. They
are illiterates and don't have knowledge of the court proceedings.
Hence, the petitioners pray to condone the delay of 1803 days in filing
the petition to set aside the ex parte decree dated 05.08.2014.
3. The respondents/ plaintiffs filed their counter denying the
allegations stated in the affidavit of petitioners/defendants
accompanying the petition and contended that petitioners/ defendants
already filed a petition for setting aside the ex parte decree dated
05.08.2014 along with petition under Section 5 of the Limitation Act and
the same was allowed on payment of costs but they failed to comply the
order for which the Court dismissed the petition. The petitioners /
defendants have to challenge the said dismissal order by filing civil
revision petition. So, this petition is not maintainable under law. Hence,
they pray to dismiss the petition.
4. After hearing both parties, the trial Court dismissed the petition
holding that the petitioners were negligent and designedly protracted
the proceedings and, therefore, they are not entitled to the relief under
Section 5 of the Limitation Act.
5. Aggrieved by the order, this revision petition is filed.
6. The learned counsel for the petitioners submitted that the
petitioners are semi-literates and thereby they could not file the petition
in time believing the instructions of the previous counsel and they were
not aware that I.A.No.395 of 2014 filed by the petitioners was allowed
subject to terms as to costs and the same was subsequently dismissed
for default on 10.08.2015 due to non-compliance of the conditional
order. He further submitted that the petitioners have good case to
contest, but a fair opportunity was not given by the trial Court
considering long delay only, instead of examining sufficiency of the
cause for the delay.
7. On the other hand, the learned counsel for the respondents
submitted that the petitioners cannot maintain a second application for
the same relief when the order in the earlier petition became final.
8. The ex parte decree and judgment were passed in the year 2014
and the petitioners filed I.A.No.395 of 2014 to set aside the ex parte
decree and judgment and the same was allowed on 23.07.2015 subject
to payment of costs of Rs.500/- and subsequently it was dismissed for
default for non-payment of costs on 10.08.2015. But, no steps were
taken to get it restored, however this second petition was filed in
I.A.No.30 of 2022 under Section 5 of the Limitation Act along with a
petition for the same relief to set aside the ex parte decree. As such,
when the second petition is not maintainable, question of examining
sufficiency of the cause for the delay in filing the said petition does not
arise. That apart, mere claim that the petitioners are semi-illiterates and
could not pursue the matter and that they are unaware of the earlier
proceedings cannot be appreciated favorably as they are supposed to
pursue the matter diligently.
9. For these reasons, there is no need to interfere with the result in
the impugned order.
10. In the result, the revision petition is dismissed. There shall be no
order as to costs.
Miscellaneous petitions, if any pending, in this Civil Revision
Petition, shall stand closed.
__________________
B.S.BHANUMATHI, J
Dt.21-08-2024
PNV
