Allowed

Reddy Surya Bhaskaram v. Reddy Radhakrishna Murthy

Telangana HC1 Nov 2012CRP/6066/2009

Case brief

AI extract

What is this about?

The court allowed a civil revision petition setting aside an order refusing to condone procedural delay. It quashed the ex parte preliminary decree in a partition suit and passed a new combined decree allotting the house to the respondent (Kartha) subject to payment of compensation to the petitioner and other respondents, dividing remaining land accordingly.

What did the court decide?

Civil revision petition allowed; ex parte preliminary decree set aside; new combined preliminary and final decree passed partitioning property between parties.

Reddy Surya Bhaskaram Vs Reddy Radhakrishna Murthy — Partition | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY CIVIL REVISION PETITION No.6066 of 2009

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ORDER:

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This revision arises out of an order, dated 06.11.2009, passed by the Court of the Senior Civil Judge, Kothapet, refusing to condone the delay of 203 days in re-presenting an application to enlarge the time for payment of costs awarded in I.A.No.541 of 2008 in O.S.No.68 of 2005.

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The brief facts that led to the filing of the revision are as under:

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The petitioner is the mother of respondent Nos.1 to 3. Respondent No.1, her only son, filed O.S.No.68 of 2005 for partition and separate possession in respect of three items of property. The petitioner herein figured as defendant No.1 and respondent Nos.2 and 3 as defendant Nos.2 and 3. An ex parte preliminary decree was passed on 25.10.2007. Thereupon, the petitioner filed an application under Rule 13 of Order 9 C.P.C. with a prayer to set aside the ex parte preliminary decree. Since there was delay of 179 days delay in filing that application, she filed I.A.No.541 of 2008 under Section 5 of the Limitation Act. The trial Court allowed I.A.No.541 of 2008 by imposing the condition that the petitioner shall deposit a sum of Rs.500/- as costs on or before 29.10.2008. Since the amount was not deposited within the stipulated time, the I.A. stood dismissed. The petitioner filed I.A.No.841 of 2009 with a prayer to enlarge the time for payment of costs. The I.A. was returned with certain

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objections. However, by the time it was presented, there was delay of 208 days. Therefore, the petitioner filed I.A.(SR).No.580 of 2009 for condonation of delay of re-presentation. Through the order under revision, the trial Court refused to condone the delay in re-presentation.

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Heard Sri T.V.S.Prabhakara Rao, learned counsel for the petitioner and Sri S.Subba Reddy, learned counsel for respondent No.1.

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A small lapse on the part of the petitioner in attending the Court, when the suit was taken up for trial, has resulted in filing of several applications: initially, an application under Order 9 Rule 13 with an application to condone the delay and thereafter, it was an application to enlarge the time for payment of costs, necessitating once again in filing an application to condone the delay in re-presentation.

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It is almost as matter of course, that the delay in representation is condoned, since the lapse would not be with the party and at the most, with the Office of the Counsel. There should not have been any difficulty for this Court in setting aside the order under revision and resurrecting the proceedings between the parties. However, since the parties are none other than the mother and children and the items of property are such that they can easily be divided to the satisfaction of the parties, this Court has ascertained the views of the parties through their counsel and has proposed to give a quietus to the entire litigation.

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Item No.1 in the suit schedule is a house constructed over an area of 308 square yards. Naturally, it should be with the Kartha of joint family, who happens to be respondent No.1 herein.

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Respondent Nos.2 and 3 are residing elsewhere after their marriage and division of the house to small segments would not be to the benefit of anyone. Item No.2 is a plot of 210 square yards abutting item No.1. Item No.3 is a plot of 487 square yards said to be located opposite to item Nos.1 and 2.

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Preliminary decree passed by the trial Court is to the effect that respondent No.1 shall be entitled to half of the share and the petitioner and respondent Nos.2 and 3 together shall be entitled to the remaining half. Even while keeping that the sharing pattern intact, this Court is of the view that the properties can be divided or allotted in such a way that all the parties can enjoy them in a better manner.

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It is felt appropriate that (a) item No.1 can be retained by respondent No.1 exclusively by paying a sum of Rs.5,00,000/- to the petitioner and respondent Nos.2 and 3; (b) item No.2 can exclusively retained by respondent No.1 by correspondingly scaling down his share in item No.3. The result would be that the petitioner and respondent Nos.2 and 3 would be entitled to a sum of Rs.5,00,000/- and a site of 387 square yards in item No.3 excluding 100 square yards for respondent No.1.

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The learned counsel for the parties, after obtaining instructions from their respective clients, submit that this pattern of division would be agreeable to all of them.

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Hence, the civil revision petition is allowed:

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I. (a) setting aside the order under revision, and

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allowing

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II. I.A.No.541 of 2008;

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(b) I.A.No.841 of 2008 is allowed and the time for payment of Rs.500/- is enlarged. Across the Bar, the learned counsel for the petitioner has paid that amount to the learned counsel for respondent No.1 and it is treated as compliance with the order, dated 14.10.2008, passed in I.A.No.541 of 2008; and

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(c) since I.A.No.541 of 2008 is allowed, the application filed under Order 9 Rule 13 C.P.C. shall also stand allowed and thereby, the preliminary decree passed on 25.10.2007 is set aside.

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III. a combined preliminary and final decree is passed to the effect that:

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(a) respondent No.1 shall be entitled to retain the entire item Nos.1 and 2 subject to payment of Rs.5,00,000/- to the petitioner and respondent Nos.2 and 3, within two months from today;

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(b) in item No.3, respondent No.1 shall be entitled to be allotted an area of 100 square yards and petitioner and respondent Nos.2 and 3 together balance 387 square yards; and

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(c) the trial Court shall engross this decree and the parties shall take necessary steps to implement the same.

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IV. (a) the petitioner shall be entitled to take back the amount of Rs.1,00,000/- deposited by her in compliance with the condition stipulated by this Court; and

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(b) the amount, if any, deposited by the parties in the auction proceedings in the final decree shall be permitted to be withdrawn.

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The miscellaneous petition filed in this civil revision petition

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also shall stand disposed of.

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_____________________

L.NARASIMHA

REDDY,J

Dt:01.11.2012

kdl

Reddy Surya Bhaskaram v. Reddy Radhakrishna Murthy

Case brief

What is this about?

What did the court decide?

Reddy Surya Bhaskaram v. Reddy Radhakrishna Murthy

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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