Andhra Pradesh High Court - Amravati
J Varalakshmi vs G Madhavi on 1 March, 2024
APHC010440312023 IN THE HIGH COURT OF ANDHRA PRADESH
:: AMARAVATI
(Special Original Jurisdiction) [
3310
]
FRIDAY ,THE FIRST DAY OF MARCH
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
CIVIL REVISION PETITION NO: 2245 OF 2023
Between:
J VARALAKSHMI AND OTHERS ...PETITIONER(S)
AND
G MADHAVI ...RESPONDENT(S)
Counsel for the Petitioner(s):SRI. G VENKATESULU
Counsel for the Respondents: K NARSI REDDY
The Court made the following:
ORDER :
This Civil Revision Petition is filed by the petitioner against the
Order, dated 06.04.2023 passed in I.A.No.78 of 2023 in O.S.No.47 of
2013 on the file of the Judge, Family Court-VII Additional District &
Sessions Court, Anantapuramu (for short "the Court below").
2. The brief facts of the case are that they are the defendants No.3
and 4 and the respondent herein is the plaintiff in the suit in O.S No.47
of 2013 filed for partition and the same was partly decreed vide judgment
dated 26.09.2014 holding that the plaintiff is entitled for partition of the
A-schedule property into three equal shares and entitled one such share
with metes and bounds and with regard to "B" schedule property the suit
was dismissed. Aggrieved by the same the petitioners herein preferred
the impugned application vide I.A No.78 of 2023 in O.S No.47 of 2013
under Section 5 of Limitation Act to condone the delay of 3042 days in
filing the petition to set aside the ex parte decree dated 26.09.2014 before
the Court below. The same was dismissed by the Court below on the
ground that the petitioners have failed to establish sufficient cause for
condoning the delay. Challenging the same, the present civil revision
came to be filed.
3. Heard Sri G. Venkateswarlu, learned counsel appearing for the
petitioners and Sri K. Narsi Reddy, learned counsel appearing for the
respondent. Perused the material on record.
4. Learned counsel for the petitioner while reiterating the contents
made in the petition submits that the Court below failed to appreciate
that the ex parte decree obtained by the respondent/plaintiff in collusion
with 1st defendant by playing fraud and misrepresentation of the 1st
defendant, as in the Hindu Family the parties believe the statement made
by the senior Member of the family and the petitioners believed the
representation of 1st defendant, who is none other than their own father
as such in the normal course the court ought to have believed the version
of the petitioners as their father himself represented that he will see that
the suit mistakenly filed by the respondent/plaintiff will be withdrawn
and he will take the necessary steps, but he failed to take the promised
steps, and under the bonafide belief the petitioners believed and did not
contest the suit after filing the written statement in the suit, as such the
court below committed error by not condoning the delay and allowing the
petition of the petitioners and wrongly said that the petitioners have not
proved just and proper sufficient cause for condoning the delay for
setting aside ex pate decree. Further, learned counsel submits that the
order passed by the court below is wrong and illegal. Therefore, learned
counsel request this Court to pass appropriate orders by setting aside the
impugned order.
5. On the other hand, learned counsel for the respondent while
denying the contents made by the petitioners submits the petitioners
failed to explain each and every day delay to that extent and the
petitioners filed the impugned petition by suppressing the real facts. He
submits that after receiving summons the petitioners/D3 and D4
engaged their counsel to prosecute their case and also filed written
statement before the Court below thereafter they did not contest the suit.
Hence the court below passed ex parte decree.
6. As seen from the impugned order, it is observed that, it is the
case of the petitioners that the 2nd defendant promised the defendants
No.3 and 4, who are petitioners herein to withdraw the suit by the
respondent/plaintiff. On believing the promise made by the 2nd
defendant, both the petitioners herein kept quiet and now they came to
know about the passing of preliminary decree in their absence, after
receipt of the notices in final decree petition. The same has been
resisted by the respondent/plaintiff saying that there is no truth in the
submissions of the petitioners to that aspect.
7. It is also settled principle that the trial Courts are required to
accord reasonable opportunity to the parties to the proceedings
permitting them to represent their respective plea and contention and the
court is required to dispose of the matters on merits. In the present case,
the reason assigned by the petitioners that the 2nd respondent promised
the petitioners herein to withdraw the suit by the respondent/plaintiff
and on believing the same both the petitioners were kept quiet is not at
all acceptable ground. Further, day to day delay has also not explained
by the petitioners. Therefore, this Court found no illegality or perversity
in the order passed by the Court below warrants no interference.
8. Finding no merit in the instant civil revision petition and as
devoid of merits, the same is liable to be dismissed.
9. Accordingly the Civil Revision Petition is dismissed. No order as
to costs. As a sequel, all the pending miscellaneous applications shall
stand closed.
______________________________
DR. K. MANMADHA RAO, J.
Gvl
