Allowed

Kaduru Krishnaiah , Radhakrishnaiah v. Kaduru Jayaramaiah [died]

Telangana HC22 Jul 2011CRP/1625/2011

Case brief

AI extract

What is this about?

In an OS for partition, the court set aside the lower court's order dismissing an application to condone a 905-day delay in filing a Letter Rogator petition, allowing the revision on payment of fees deemed necessary for costs, noting the lower court overlooked the difficulty in procuring LRs' details.

What did the court decide?

The order dated 10.03.2011 in I.A. No.301 of 2006 is set aside upon payment of Rs. 2,500 to respondents' counsel within two weeks.

Kaduru Krishnaiah , Radhakrishnaiah Vs Kaduru Jayaramaiah [died] — Partition | Telangana HC (2011)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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FRIDAY, THE TWENTY SECOND DAY OF JULY TWO THOUSAND AND ELEVEN

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PRESENT

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THE HONOURABLE SRI JUSTICE G.CHANDRAIAH

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C.R.P. No.1625 of 2011

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Between:

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Kaduru Krishnaiah and others. … Petitioners and

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Kaduru Jayaramaiah (died) and others

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… Respondents

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THE HONOURABLE SRI JUSTICE G.CHANDRAIAH

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C.R.P. No.1625 of 2011

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ORDER:

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This revision petition is filed aggrieved by the order dated 10.03.2011 made in I.A. No.301 of 2006 in O.S. No.42 of 2000 on the file of the Senior Civil Judge, Kovur.

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The petitioners herein are the plaintiffs and the respondents are the defendants in O.S. No.42 of 2000.

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I.A. No.301 of 2006 was filed by the petitioners, plaintiffs, in O.S. No.42 of 2000 under Section 5 of the Limitation Act seeking to condone the delay of 905 days in filing the L.R. petition. The said I.A. was dismissed by the Court below on 10.03.2011. Aggrieved by which, the present revision petition has been filed by the petitioners, plaintiffs.

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The learned counsel for the revision petitioners would submit that the suit in O.S. No.42 of 2000 was filed on the file of the learned Senior Civil Judge, Kovur, seeking partition in respect of the suit schedule property. During pendency of the said suit, the sole defendant died on 25.01.2004. Thereafter, on 01.07.2004 the suit was dismissed for default. While so, the petitioners filed an application under Order IX Rule 9 seeking to restore the suit on file, which was dismissed for default on 01.07.2004, and also an application in I.A. No.301 of 2006 seeking to condone the delay of 905 days in filing the L.R. application and the said delay application was dismissed by the

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Court below vide its order dated 10.03.2011.

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He further submitted that I.A. No.301 of 2006 was filed on two grounds i.e. firstly, the counsel for the defendant failed to furnish the particulars of the L.Rs. of the deceased defendant and secondly, the L.Rs. of the deceased defendant were residing at different places and therefore, the petitioners could not able to secure their particulars. After securing the particulars of the L.Rs. of the deceased defendant, immediately L.R. petition was filed. Therefore, just because of securing the particulars of the L.Rs. of the deceased defendant, the delay of 905 days was occurred, which is neither willful nor wanton.

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Further, it is also submitted that the Court below while considering the I.A. No.301 of 2006 had considered only the first ground and dismissed the same holding that it is not an obligation on the part of the deceased defendant’s counsel to furnish the particular of the L.Rs. of the deceased. But the Court below did not consider the second ground that as the L.Rs. of the deceased defendant were residing at different places, the petitioners faced much difficulty in securing their particulars and in that process only such inordinate delay was occurred and immediately after securing the particulars of the L.Rs. of the deceased defendant, they field the L.R. petition. Therefore, the order passed by the Court below is erroneous and the same is liable to be set aside.

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On the other hand, the learned counsel for the respondents would submit that the petitioners and the respondents are close relatives and family members and residing in the same village, therefore, the petitioners know the particulars of the L.Rs. of the deceased defendants. Consequent to the death of the sole defendant on 25.01.2004 and thereafter, dismissing the suit for default on 01.07.2004, the petitioners have not evinced any interest in prosecuting the proceedings of the suit. Just for the reason to protract the litigation between the parties, the petitioners filed petition under

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Order IX Rule 9 CPC seeking to set aside the order of dismissal for default. As there is delay of 905 days in filing the L.R. petition and no satisfactory explanation is given in the affidavit, filed in support of the petition seeking to condone the delay of 905 days, the Court below had rightly dismissed the I.A. No.301 of 2006. Therefore, no interference of this Court is required under Article 227 of the Constitution of India and the present revision petition may be dismissed.

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Heard the learned counsel on either side and perused the material on record.

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As could be seen from the grounds raised by the petitioners in his application in I.A. No.301 of 2006, wherein, it is not only mentioned that the delay is caused because the learned counsel for the defendant failed to furnish the particulars of the L.Rs. of the deceased defendant but also mentioned that the L.Rs. of the deceased defendant were residing at different places and in the process of securing their particulars, the delay is caused and it appears that the second ground raised in the said I.A. was not considered by the Court below.

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Admittedly, the suit is for partition in respect of the suit schedule property. It is always appropriate to adjudicate the matter in the presence of the parties with a view to do substantial justice to the parties to the lis. In view of the fact that the second ground that the delay is caused due to the L.Rs. of the deceased defendant were residing at different places and in the process of securing their particulars, the delay is caused is sustainable but the same is, no doubt, inordinate delay.

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In that view of the matter, having regard to the facts and circumstances of the case and the submissions made by the learned counsel on either side, order dated 10.03.2011 made in I.A. No.301 of

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2006 in O.S. No.42 of 2000 by the learned Senior Civil Judge, Kovur, is set aside on payment of Rs.2,500/- (Rupees two thousand and five hundred only) to be paid to the counsel appearing for the respondents in the revision petition, within a period of two weeks, from today.

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Accordingly, this revision petition is allowed.

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___________________________ JUSTICE G.CHANDRAIAH

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Date: 22.07.2011 LSK

Kaduru Krishnaiah , Radhakrishnaiah v. Kaduru Jayaramaiah [died]

Case brief

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Kaduru Krishnaiah , Radhakrishnaiah v. Kaduru Jayaramaiah [died]

Case brief

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