Devulapalli Sudha vs Lakkaraju Anuradha
2022 Latest Caselaw 6268 Tel

             HON'BLE SRI JUSTICE K. LAKSHMAN

   CIVIL REVISION PETITION Nos.2485 AND 2446 OF 2022
COMMON ORDER:

      Heard Mr. A. P. Suresh, learned counsel for the petitioners and

Mr. A. Giridhar Rao, learned senior counsel representing Mr. Palle

Srinivasa Reddy, learned counsel for the respondents in both the

revisions.

2. C.R.P. No.2485 of 2022 is filed by the petitioners

challenging the order dated 08.07.2022 passed by the learned

Principal District Judge at Mahabubnagar in I.A. No.827 of 2021 in

O.S. No.12 of 2015 dismissing the petition to condone the delay of

1526 days in filing the application to set aside the order dated

19.04.2017 by restoring the suit. Whereas, C.R.P. No.2446 of 2022 is

filed by the petitioners challenging the order dated 08.07.2022 passed

by the very same Court in I.A. No.742 of 2021 in O.S. No.13 of 2015

dismissing the petition to condone the delay of 1526 days in filing the

petition to set aside the order dated 19.04.2017 by restoring the suit.

3. Since the lis involved in both the revisions and the parties

are one and the same, both the revisions were heard together and they

are disposed of by way of common order.

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4. Originally, the petitioners in C.R.P. No.2485 of 2022 had

filed a suit vide O.S.No.12 of 2015 against the respondents/

defendants seeking declaration of title declaring plaintiff No.1 as

absolute owner in respect of suit schedules 'B', 'C' and 'D'

properties, while plaintiff No.2 in respect of Schedule 'A' property

situated at Ketireddipalli Village of Balanagar Mandal, Mahabubnagar

District, by setting aside the judgment and decree dated 24.02.2014

passed in O.S. No.81 of 2013 by the learned VIII Additional District

Judge, Mahabubnagar, and for cancellation of registered sale deed

bearing document No.6158 of 2014, dated 07.11.2014 executed by the

aforesaid Court in E.P.No.16 of 2014 and also for consequential

perpetual injunction, against the respondents.

5. Whereas, the petitioners in C.R.P. No.2446 of 2022 had filed

a suit vide O.S. No.13 of 2015 seeking the similar relief declaring

plaintiff No.1 as absolute owner in respect of Schedule 'A' property,

while plaintiff No.2 in respect of Schedule 'B' Property situated at the

aforesaid Village by setting aside the judgment and decree dated

20.12.2013 passed in O.S. No.80 of 2013 by the learned VIII

Additional District Judge, Mahabubnagar and for cancellation of

KL, J C.R.P. Nos.2485 & 2446 of 2022

registered sale deed bearing document No.6157 of 2014, dated

07.11.2014 executed by the said Court in E.P. No.15 of 2014.

6. However, both the aforesaid suits were dismissed for default

on 19.04.2017.

7. The petitioners herein had filed I.A. Nos.827 and 742 of

2021 in O.S. Nos.12 and 13 of 2015 respectively seeking to condone

the delay of 1526 days in filing the petition to set aside the dismissal

order dated 19.04.2017 passed in the aforesaid suit by restoring the

suits to its original position on the following grounds:

i) The petitioners reside at Hyderabad and they were

remained in constant contact with their counsel, Mr. P.

Prabhakar. However, they were not informed the status

of the case;

ii) During the pendency of the aforesaid suits, plaintiff No.2

in O.S.12 of 2015, namely N. Kamalamma, elder sister of

the petitioners died on 21.01.2016. Due to which, they

went into complete depression and could not pursue the

suits;

KL, J C.R.P. Nos.2485 & 2446 of 2022

iii) In the month of January, 2020, petitioner No.1 verified

the status of the suits online in the District Court website

and came to know about the dismissal of the aforesaid

suits on 19.04.2017. Then they approached their counsel

on record and verified with him, on which their counsel

gave evasive replies. Therefore, they have changed their

advocate on record and appointed another advocate.

iv) They came to know about the dismissal order only during

the month of January, 2020, but due to ongoing pandemic

crises and their health conditions, they could not file the

application to set aside the dismissal order in time.

However, on the advice of newly engaged advocate, filed

applications for setting aside the dismissal order dated

19.04.2017. Therefore, there is delay of 1526 days, and

they sought to condone the said delay.

8. Respondent Nos.1 and 2 filed separate counters opposing the

said petitions with the following grounds:

i) After dismissal of the aforesaid suits, petitioner No.1

filed an application on 21.01.2018 under Order XIII, Rule

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-7 (2) of the Code of Civil Procedure, 1908 (CPC) in both

the suits for return of the documents and the same was

allowed.

ii) In the affidavits filed in support of the aforesaid petitions,

the petitioners mentioned about the dismissal of the suits

on 19.04.2017 and that no appeal was preferred.

iii) In view of the above, the petitioners were having

knowledge of dismissal of the suits by the date of filing

the aforesaid petitions. Therefore, the plea taken by the

petitioners that they came to know about the dismissal of

the aforesaid suits only during the month of January,

2020 is incorrect and created for the purpose of filing the

petitions to condone the delay.

iv) As the petitioners have filed an affidavit with false

contents before the Court below, they are liable to be

prosecuted for perjury.

9. After hearing both sides and considering the rival

submissions, the trial Court, vide order dated 08.07.2022 relying on

the principle laid down by the Hon'ble Supreme Court in Esha

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Bhattacharjee v. Raghunathpur Nafar Academy1 dismissed the

petitions to condone the delay in both the suits, with the following

reasons:

i) The petitioners were aware of the dismissal of the suits as

on 16.02.2018, as they had filed an application under

Order - XIII, Rule 7 (2) of the CPC on 16.02.2018

through their counsel Mr. Prabhakar, Advocate, wherein

they have deposed in the affidavit that the suit was

dismissed for default on 19.04.2017 and that no appeal

was preferred and that no proceedings pending before

any Court.

ii) The petitioners acted in utter negligence in not pursuing

the suit proceedings by taking steps to restore.

iii) The petitioners approached the Court with mala fides.

iv) The petitioners have not shown 'sufficient cause' to

condone the delay.

10. Challenging the said orders, the petitioners have filed the

present revisions with the following grounds:

. (2013) 12 SCC 649

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i) The trial Court failed to appreciate the reasons for the

delay caused in filing the petitions to set aside the order

dated 19.04.2017.

ii) The trial Court failed to appreciate the fact that the suit

was posted for trial on 04.04.2017 on which day the

Presiding Officer was on lease, it was posted to

10.04.2017 and again posted to 19.04.2017, on which

day, strangely, the suit was dismissed for non-appearance

of the petitioners.

iii) The trial Court also failed to appreciate that the suit was

dismissed on 19.04.2017 solely due to intentional non-

representation of the counsel on record, Mr. P. Prabhakar,

Advocate.

iv) Regarding filing of petition under Order XIII, Rule 7 (2)

of the C.P.C., the petitioners would submit that their

advocate Mr. P. Prabhakar on the pretext of taking back

the original land documents from the Court prepared the

petition and affidavit and in fact, the petitioners had no

knowledge of dismissal of the suit by that time and they

were kept in dark by their counsel on record.

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11. The respondents have filed counter reiterating their stand

taken in the counter filed before the trial Court.

12. Even learned counsel on either side argued at length

reiterating their contentions taken in the affidavit filed in support of

the petition to condone the delay as well as in the counter, as

mentioned above.

13. Mr. A.P. Suresh, learned counsel for the petitioners, would

submit that the petitioners in both the revisions believed their counsel,

Mr. P. Prabhakar, and they were under the impression that the suits

were not dismissed for default. They have filed the aforesaid

interlocutory application to return the documents and they have signed

the petitions without knowing that the suits were dismissed for non-

prosecution.

14. Referring to the docket proceedings, he would further

submit that vide docket order dated 17.01.2017, the trial Court

recorded the statement of learned counsel for the petitioners that the

plaintiffs are not showing interest in pursuing the litigation and,

therefore, the trial Court directed them to appear in the Court and

adjourned the matter to 31.01.2017. From 31.01.2017, it was

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adjourned to 14.02.2017 for framing issues. On 27.03.2017, the trial

Court had framed issues and adjourned the matter to 04.04.2017 for

trial, on which day, the Presiding Officer was on leave and the matter

was adjourned to 10.04.2017. On 10.04.2017, at the request, it was

adjourned to 19.04.2017 for trial. On 19.04.2017, recording the

absence of the petitioners/plaintiffs, the trial Court dismissed the suits

for default without costs. Thus, learned counsel would submit that

the petitioners' counsel before the Court below kept them in dark

without informing the correct status of the suits. With regard to the

appearance as ordered by the trial Court, learned counsel would

submit that the counsel before the trial Court had not informed all the

said facts and, therefore, the petitioners did not appear before the trial

Court. Thus, the petitioners in both the revision are throwing the

blame on their counsel Mr. P. Prabhakar.

15. It is relevant to note that in the counter filed by the

respondents in the present revisions, it is specifically contended that

the petitioners are not illiterates. Petitioner No.1 is a graduate and

petitioner No.2 is a Post-graduate. There is no denial with regard to

the same by the petitioners by filing reply to the counter. Therefore,

petitioner No.1 i.e., Smt. Devulapalli Sudha is a Graduate, while

KL, J C.R.P. Nos.2485 & 2446 of 2022

petitioner No.2 in CRP No.2446 of 2022, Smt. K. Rama Devi is a

Post-graduate. The petitioners have not disputed the fact that they

have signed the affidavit filed in support of the petition filed under

Order - XIII, Rule - 7 (2) of the C.P.C. seeking to return of the

documents. In the affidavit filed in support of the said petition under

Order XIII, Rule - 7 (2) of the C.P.C., the petitioners have specifically

mentioned about filing of the suit, relief sought therein and dismissal

of the same on 19.04.2017. They have also mentioned that thereafter

they have not prosecuted the said suit by way of an appeal or by any

method and there is no prohibitory order with regard to the suit

proceedings. It is further mentioned that since there are no

proceedings pending with regard to the said suit, that the said suit was

dismissed and no appeal or any other proceedings are pending before

the Court or in any appellate Court and that the petitioners are in need

of the documents shown in the affidavit for their family purpose.

With the said contentions, they sought the return of the said

documents.

16. It is also relevant to note that it is specifically contended

that respondent No.1 had purchased the property through an

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agreement of sale from respondent No.2, and thereafter filed suits vide

O.S.Nos.81 and 80 of 2013 for specific performance. The same were

decreed, execution petitions were filed and registered sale deeds were

executed in their favour. On the applications filed by respondent No.1

in both the revisions, the Tahsildar has mutated their names in the

revenue records. Before the Tahsildar, the petitioners have filed

objections, and on consideration of the same, the Tahsildar vide order

dated 13.08.2015 mutated the name of respondent No.1 in both the

revisions in the revenue records.

17. Questioning the same, the petitioners have addressed a

letter dated 06.10.2015 to the Joint Collector and the same was taken

as suo-motu revision vide Case No.D1/72/2015. In the said revision,

respondent No.1 has filed a memo by bringing to the notice of the

Joint Collector about filing of the aforesaid suits and dismissal of the

same on 19.04.2017. On consideration of the said facts, the Joint

Collector, vide order dated 16.12.2019, set aside the order dated

13.08.2015 passed by the Tahsildar. In the said order, the Joint

Collector has also specifically mentioned about the dismissal of the

suits on 19.04.2017 itself. The petitioners herein have also engaged

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an advocate before the Joint Collector. Challenging the order in so far

as case N.D1/72/2015, respondent No.1 in both the revisions, have

filed a writ petition vide W.P. No.273 of 2020, wherein the petitioners

herein have also specifically contended about the dismissal of the

aforesaid two suits on 19.04.2017. The petitioners herein have

engaged an advocate and filed counter and vacate stay petition. On

consideration of the same, this Court, vide order dated 01.11.2021

allowed the said writ petition in part. In the said order, there is

specific mention about the dismissal of the aforesaid suits on

19.04.2017. Despite the aforesaid facts, the petitioners herein are now

blaming their earlier counsel, Mr. P. Prabhakar, sought condonation of

1526 days in filing the petition to set aside the dismissal order dated

19.04.2017.

18. It is also relevant to note that in the affidavit filed in

support of the petitions in I.A. Nos.827 and 742 of 2021 in paragraph

No.5, they have specifically mentioned that during the month of

January, 2020, they have verified the status of the suits online through

Mahabubnagar District Court Website and came to know about the

dismissal of the suits on 19.04.2017. Thus, there is delay of 1½ years

KL, J C.R.P. Nos.2485 & 2446 of 2022

almost in filing the condone delay petition. There is no explanation,

much less plausible explanation with regard to the delay from January,

2020 to July, 2021 by the petitioners. However, they are trying to take

shelter under COVID-19 pandemic and also that both the orders are

contrary to each other.

19. As discussed above, both the petitioners are graduate and

post-graduates respectively. They are in a position to verify the status

of the suits through online. They have also mentioned the site address.

They are not illiterates. Having signed in the application filed under

Order - XIII, Rule - 7(2) of the CPC seeking to return the documents,

having gone to the Court for the purpose of receiving the said

documents, and singed in the Register maintained by the Court in

proof of receipt of the documents, now they cannot throw the blame

on their counsel, Mr. P. Prabhakar. They cannot contend that they do

not have knowledge of dismissal of the suits on 19.04.2017.

20. As discussed above, the petitioners have also filed counter

affidavit along with vacate stay petition in the aforesaid W.P. No.273

of 2020. In the counter affidavit, the petitioners herein had mentioned

about the dismissal of the aforesaid suits on 19.04.2017. Therefore,

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according to this Court, both the petitioners are having knowledge of

dismissal of the aforesaid suits on 19.04.2017. They have invented

the plea that their counsel, Mr. P. Prabhakar did not furnish the

information to them about the dismissal of the suits on 19.04.2017,

only for the purpose of filing the present petitions seeking to condone

the delay. The said contention taken by the petitioners is factually

incorrect. The petitioners have not approached the trial Court with

clean hands and they have filed affidavit with false statement. The

said facts were considered by the trial Court in the impugned order.

21. It is also relevant to note that, even according to the

petitioners, they came to know about dismissal f the suits only in the

month of January, 2020. But, they have filed the aforesaid

interlocutory application only on 19.07.2021. Thus, there is delay of

almost ne and half years. There is no explanation, much less plausible

explanation to the said delay. Thus, viewed from any angle, the

present revisions are liable to be dismissed.

22. In view of the aforesaid discussion, the petitioners failed to

make out any ground to interfere with the impugned order. The order

under revisions is reasoned order and well-founded and it does not

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warrant any interference by this Court by exercising its

superintendence jurisdiction under Article - 227 of the Constitution of

India. Thus, both the revisions fail and the same are liable to be

dismissed.

23. Both the Civil Revision Petitions are accordingly

dismissed. However, in the circumstances of the case, there shall be

no order as to costs.

As a sequel, the miscellaneous petitions, if any, pending in the

revisions shall stand closed.

_________________ K. LAKSHMAN, J 30th November, 2022 Mgr