Kotha Krishna Reddy vs Boppidi Suvarna
2022 Latest Caselaw 4565 Tel

     THE HON'BLE MRS JUSTICE SUREPALLI NANDA
                    C.R.P.NO.1628 OF 2022
ORDER:

Heard Sri Bankatlal Mandhan, learned counsel for the

petitioner and Sri M.A.Raheem, learned Counsel for

respondent.

2. This Civil Revision Petition is filed under Section 115 of

the Code of Civil Procedure challenging the order dated

16.06.2022 in I.A.No.23 of 2014 in O.S.No.208 of 2007 on

the file of the Principal Senior Civil Judge, Bhongir.

3. The petitioner/defendant filed I.A.No.23 of 2014 under

Section 5 of the Limitation Act seeking condonation of delay

of 92 days in filing the petition i.e. I.A.No.24 of 2014 under

Order IX Rule 13 C.P.C. seeking the Court to set aside the

judgment and decree passed in O.S.No.208 of 2007 dated

02.09.2014.

4. The case of the petitioner/defendant is that he was

suffering from chronic viral fever and bronchial Asthma from

15.04.2014 to 30.11.2014 and he was under medical

treatment in Gandhi Hospital, Secunderabad. After receipt of

summons in the suit, he engaged advocate by name CRP_1628_2022 2 SN,J

Sri Vamshi Krishna. Due to his ill-health and since he was

bedridden, the petitioner/defendant could not contact his

counsel to know the stage of the suit proceedings, the counsel

also did not inform him about the progress of the suit. On

14.11.2014, he came to know through Villagers of

Chandepally that the respondent/plaintiff had visited the

village and made propaganda that he had won the case. He

immediately went to his counsel to know the stage of the

case, but the counsel did not respond and on the other hand,

he handed over the case file to him. He then went to Bhongir

and came to know that the suit had been decreed. Thus,

there was delay of 90 days and the same may be condoned.

5. The respondent herein filed counter stating that on

02.09.2014, the Court decreed the suit since the defendant

has not adduced any evidence on his behalf. He asserted that

the judgment and decree passed by the Court is a contested

judgment, but not an exparte judgment and decree. He

alleged that the petitioner has not filed any document, to

prove his ill-health and that there is no explanation for day to

day delay. He also alleged that the present petition is filed

only to drag on the matter.

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6. The petitioner himself got examined as PW.1 and got

marked one document and that the respondent did not

adduce any evidence and no documents were marked.

7. Feeling aggrieved by the dismissal of I.A.No.23 of 2014,

the petitioner preferred the present revision petition.

8. PERUSED THE RECORD.

9. The lower Court after considering the evidence on

record by common order dated 16.02.2022, recorded a

finding that the petitioner failed to make out case for

condonation of delay and to set aside the judgment and

decree dated 02.09.2014 and accordingly, dismissed

I.A.No.23 and 24 of 2014.

10. Learned counsel for the petitioner mainly contended as

follows:

i) The court below failed to appreciate the fact that the

suit is filed for cancelation of final decree of partition dated

20.01.1992 in O.S.No.328 of 1991 on the file of District

Munsiff, Bhongir as null and void and not binding on the

respondent herein/plaintiff and to pass a fresh preliminary CRP_1628_2022 4 SN,J

decree for partition of the suit schedule properties and the

said issue involved rights in immoveable property and

therefore, should have allowed I.A.No.23 of 2014 in

O.S.No.208 of 2007.

ii) The lower Court did not consider the fact that the Civil

Revision Petitioner was suffering with ill-health and has been

Aasthma and was bed ridden from 15.04.2014 to 30.11.2014

and the said fact was not specifically denied by the

respondent in the counter affidavit filed by her.

iii) Learned counsel for the petitioner urged to set aside the

order dated 16.06.2022 in I.A.No.23 of 2014 in O.S.No.208 of

2007 on the file of the Principal Senior Civil Judge at Bhongir

and to allow the civil revision petition as prayed for.

11. Learned counsel for the respondent mainly contended

as follows:

i) The suit was decreed on 20.01.1992 after giving ample

opportunity to the civil revision petitioner and that the civil

revision petitioner failed to produce any document to prove

that he was admitted in the hospital as in patient for the

period of 14.04.2014 to 30.11.2014.

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ii)    The civil revision petitioner created a story of his

admission in the hospital.

iii) The civil revision petitioner failed to make out any

ground for condonation of delay and to set aside the

judgment and decree dated 02.09.2014 passed in O.S.No.208

of 2007.

iv) Learned counsel for the respondent prayed for dismissal

of the civil revision petition.

12. PW.1-Kotha Krishna Reddy in his affidavit in lieu of

Chief Examination stated all the facts as mentioned in his

petition. In cross examination he says that he was admitted

in Gandhi Hospital for a period of six months as he suffered

from Asthma and that from 15.04.2014 to 30.11.2014, he

was in the hospital, and that he was discharged from the

hospital on 30.11.2014. When asked he further said in the

cross examination that he was admitted in the hospital as in-

patient in the above said period. But no discharge report is

filed. Ex.A.1 is the Medical Certificate relied upon by the

petitioner to prove that he was under medical treatment from

15.04.2014 to 30.11.2014.

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13. A perusal of Ex.A.1-Medical Certificate shows that a Civil

Assistant Surgeon of Gandhi Hospital issued Medical

Certificate certifying that the petitioner was in bad state of

health, as he was suffering from fever and Asthmaa and that

the period of his absence from duty was necessary for

recovery of his health and so medical leave might be granted.

PW.1 in cross examination admits that in Ex.A.1, it is

mentioned that medical leave might be granted. The contents

of Ex.A.1- the Medical Certificate it therefore follows that

Ex.A.1 would only show that the petitioner was under medical

treatment from 15.04.2014 to 30.11.2014 and the certificate

was issued for obtaining sanction of medical leave, for more

than one reason, Ex.A.1-Medical Certificate is procured and it

does not prove the fact that the petitioner suffered from ill-

health from 15.04.2014 to 30.11.2014.

14. Firstly, the certificate does not show that the petitioner

was admitted as in-patient in Gandhi Hospital from

15.04.2014 to 30.11.2014 and that he was discharged from

the hospital on 30.11.2014. The certificate was issued for

obtaining sanction of medical leave as if the petitioner is an CRP_1628_2022 7 SN,J

employee, but as can be seen from the affidavit the

occupation of the petitioner is agriculture. As per the

certificate the petitioner was treated as an outpatient but the

version of the petitioner as PW.1 in cross examination is that

he was treated as an in-patient. The occupation of the

petitioner as mentioned in the affidavit is agriculture, but not

Government Service. The version of PW.1 would falsify

Ex.A.1-Medical Certificate and the same is not worthy of

credence and consequently, it has to be held that the

petitioner failed to prove that he was suffering from ill-health

from 15.04.2014 to 30.11.2014 and the delay needs to be

condoned. A perusal of the impugned order in particular Para

'10' would show that the lower Court has not committed any

illegality or irregularity in passing the impugned order and so

there are no grounds to interfere with the impugned order.

15. Accordingly, the civil revision petition is dismissed. No

order as to costs.

Miscellaneous petitions, if any, pending shall stand

dismissed.

_________________ SUREPALLI NANDA, J Date: 13.09.2022 Kvrm