Allowed

Shaik Rasool v. Shaik Iqbal Basha

Andhra Pradesh HC15 Oct 2019CRP/2170/2019

Case brief

AI extract

What is this about?

This court allowed a civil revision petition against an order dismissing an application to condone a 113-day delay in filing a petition under Order IX Rule 13 CPC. The trial court allowed the delay, and the higher court set aside that dismissal to permit the trial to proceed.

What did the court decide?

The order dated 02.04.2019 is set aside; the I.A. is allowed condoning delay conditioned on payment of Rs.500 costs to the respondent's counsel within 4 weeks.

Shaik Rasool Vs Shaik Iqbal Basha — Civil Procedure and Limitation | Andhra Pradesh HC (2019)

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HONOURABALE SRI JUSTICE M. GANGA RAO Civil Revision Petition No.2170 of 2019

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ORDER:

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The Civil Revision Petition is directed against the order dated 02.04.2019 passed in I.A.No.427 of 2018 (Old I.A.No.182 of 2017) in O.S.No.397 of 2003 filed under Section 5 of the Limitation Act to condone the delay of 113 days in filing the application under Order IX Rule 13 of the Code of Civil Procedure, 1908.

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Heard the learned counsel for the petitioners and the learned counsel for the respondent.

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The respondent herein is the plaintiff in the above suit. He filed the suit for declaration of title and for mandatory injunction for removal of structures. When the suit was posted on 01.02.2016 for filing written statement of the defendants on which date the 8^th defendant filed his written statement, and since the other defendants are under impression that it would sufficient to make their defence, they did not file their written statement. Consequently, the trial Court passed an ex parte decree on 18-04-2016. However, the revision petitioners filed the petition under Order IX Rule 13 CPC to set aside the ex parte decree. As there was delay in filing the said petition, they filed a petition under Section 5 of the Limitation Act to condone the delay of 113 days in filing petition to set aside the ex parte decree. But the trial Court dismissed the said petition holding that the petitioners failed to prove that the 2^nd defendant, who is wife of the deceased 1^st defendant, was suffering from ill health and to prove her bona fides, the petitioners did not file their written

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MGR, J

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C.R.P.No.2170 of 2019

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statement. Challenging the same, the present revision petition has been filed.

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Learned counsel for the revision petitioners submits that the trial court failed to observe that the suit is for declaration of title and mandatory injunction where property rights are involved in which case the trial court could have allowed the petition for setting aside the ex parte order by condoning the delay of 113 days. Hence, the order under revision is liable to be set aside.

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Having regard to the facts and circumstances of the case and considering the submissions of the learned counsel for the revision petitioners, and on perusal of the record, this court is of the considered view that if the revision petitioners are given one more opportunity to make their defence in the suit, it would not cause any prejudice to the plaintiff in as much as the suit is filed for declaration of title and injunction where property rights of both the parties needs to be adjudicated.

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Accordingly, the Civil Revision Petition is allowed setting aside the order dated 02.04.2019 in I.A.No.427 of 2018 in O.S.No.397 of 2003 passed by the III Additional Junior Civil Judge, Kadapa, and I.A.No.427 of 2018 in O.S.No.397 of 2003 is allowed condoning the delay, on condition of payment of costs of Rs.500/- (Rupees five hundred only) to the counsel appearing for the respondent-plaintiff before the trial Court, within a period of four (4) weeks from the date of receipt of a copy of the order.

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MGR, J

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C.R.P.No.2170 of 2019

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As a sequel thereto, miscellaneous petitions, if any, pending

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shall stand closed.

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________________ M. GANGA RAO, J

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Date: 15-10-2019

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Ksn

Shaik Rasool v. Shaik Iqbal Basha

Case brief

What is this about?

What did the court decide?

Shaik Rasool v. Shaik Iqbal Basha

Case brief

What is this about?

What did the court decide?

What the court decided

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