Revision petitions filed under Section 115 CPC challenging dismissal of civil applications seeking to set aside suit abatement due to defendant's death, condone delay, and implead legal heirs were dismissed for failure to explain delay.
All civil revision petitions were dismissed without costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HON’BLE SRI JUSTICE A.GOPAL REDDY
CRP Nos. 5793, 5814, 5834, 5848, and 6180 of 2010
DT.1-2-2011
CRP No.5793/2010:
. Gogineni Mohan Rao …Petitioner
V.
1. Smt. Gogineni Nagendramma (died) and others.
..Respondents
The Court made the following:
HON’BLE SRI JUSTICE A.GOPAL REDDY
CRP Nos. 5793, 5814, 5834, 5848, and 6180 of 2010
COMMON ORDER:
Since the parties in all the revision petitions are one and the same, they are being heard together and disposed of by this common order.
The revision petitioner in all the revision petitions is the plaintiff in OS No.233/2008 on the file of IV Additional Senior Civil Judge (FTC), Vijayawada. He filed the suit for specific performance of an agreement of sale against the sole defendant, Gogineni Nagendramma. In the said suit, on the death of the sole defendant on 16-10-2008, leaving behind her husband, son and daughter as her legal heirs, a memo to the said effect was filed on 5-1-2009 by the counsel for the defendant. Thereafter, the suit was posted to 18-2-2009 for taking steps. On 18-2-2009, the plaintiff filed IA No.86/2009 to implead the legal representatives of the sole defendant as defendants in the suit. Since the petition has not been filed within 90 days and no petitions to set aside the abatement caused due to the death of the sole defendant and also to condone the delay in filing the abatement petition were filed, LR petition was dismissed on 1- 12-2009 as the suit was already abated and the suit was also dismissed on 1-12-2009. On dismissal of the suit as abated, the plaintiff filed five applications, namely, (1) IA No.208/2010 under Order
XXII Rule 9 CPC to set aside abatement caused due to the death of the sole defendant; (2) IA No.209/2010 under Order 9 Rule 9 CPC to restore the suit to file, which was dismissed on 1-12-2009; (3) IA No.142/2010 under Section 5 of the Limitation Act to condone the delay of 416 days in filing the petition to set aside the abatement; (3) IA.No.143/2010 under section 5 of the Limitation Act to condone the delay of 66 days in filing the petition for restoration of the suit and (5) IA No.210/2010 under Order XXII rule 4 CPC to implead the respondents 2 to 4 who are the legal heirs of the first defendant as defendants 2 to 4 in the suit. The trial court dismissed all the above petitions on 15-92010 by separate impugned orders. Questioning the same, the present revision petitions are filed under Sec. 115 of the Code of Civil Procedure by the plaintiff, respectively.
It is not in dispute, all the above five petitions are not filed immediately on dismissal of IA No.86/2009 on 1-122009. In the affidavits filed in support of the petitions, the delay from 1- 12-2009 to the date of filing of the above petitions ie., 8-3-2010, has not been explained.
When the revision petitions were taken up for admission on 24-12-2010, when this court pointed out that how the petitions are maintainable since the order passed in IA No.86/2009 has become final, learned counsel for the revision petitioners took time on 24-122010. Therefore, the matter was directed to be listed after Sankranthi Vacation of 2011. On 21-1-2011, it was informed that CRP (SR) No.31798/2010 has been filed, by the plaintiff, against the dismissal of IA No.86/2009 to over come the finality stating that on dismissal of IA No.86/2009, IA Nos.143,142,208,209 and 210 of 2010 were filed and immediately on obtaining certified copies, the plaintiff filed the present revisions against the dismissal of IAs and at that point
of time, the plaintiff was advised to file revision questioning the orders passed in IA No.86/2009 dt. 1-12-2009, therefore, he is filing the revision questioning the orders passed in IA No.86/2009 along with delay condonatipn petition. Delay is neither wilful nor wanton.
No sufficient reasons have been mentioned in the affidavit filed in support of the delay condonation petition in CRP (SR ) No.31798/2010 except stating that on dismissal of IA No.86/2009, the above five applications were filed and they were dismissed on 159-2010 and on obtaining certified copies he rushed to Hyderabad and filed the above revisions and at that point of time, he was advised to file revision questioning the orders passed in IA No.86/2009 dt. 1-122009. The plaintiff failed to explain each day’s delay from the date of filing of memo in the trial court till the date of filing of the above petitions. Even after dismissal of IA No.86/2009, and even if the period during which IA has prosecuted is excluded, he has not explained the delay caused from the date of dismissal of IA No.80/2009 till the date of filing of CRP (SR) No.31798/2010. The discretion exercised by the trial court in dismissing all the petitions do not suffer from any illegality warranting interference by this court.
All the Civil Revision Petitions are accordingly dismissed. No costs.
___________________ A. GOPAL REDDY, J
Date:1-2-2011 kmr
3 issues framed by the court
Whether the trial court erred in dismissing petitions seeking to condone delay and set aside abatement due to death of a party.
Whether the revision petitioner adequately explained the delay in filing applications post-dismissal of the restoration application.
Whether the High Court should interfere with the trial court's discretion in dismissing the restoration and condonation petitions.
5 provisions across 2 enactments
Gogineni Mohan Rao
Gogineni Nagendramma (died) and others
A. GOPAL REDDY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
