The High Court allowed a Civil Revision Petition against the dismissal of an application to restore an appeal dismissed for default, directing payment of costs within four weeks.
The Civil Revision Petition and the underlying application to restore the appeal are allowed on condition of payment of costs within four weeks.
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THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR
Civil Revision Petition No. 2410 of 2010
Order:
This Revision Petition is filed aggrieved by the orders, dated 11.03.2010, passed in I.A. No. 589 of 2009 in A.S. No. 258 of 2006 by the learned XI Additional District and Sessions Judge (Fast Track Court), Tenali, Guntur District.
The petitioner herein filed a suit for declaration of title and for recovery of possession against the respondent herein, who is his own brother. The said suit was dismissed. Aggrieved by the same, he preferred an appeal in A.S. No.258 of 2006 and the said appeal was dismissed for default on 13.06.2008. Then he filed an application on 07.07.2009 to restore the said appeal along with I.A. No. 589 of 2009 to condone the delay of 389 days in filing the said restoration petition. The court below, by impugned order, dismissed the said I.A. No.589 of 2009. Aggrieved by the same, the petitioner filed the present revision petition.
It is not in dispute that the petitioner is working as Branch Manager, Central Bank of India, Hyderabad. It appears that for nonpayment of batta to the second respondent in the appeal, the appeal was dismissed on 13.06.2008. The case of the petitioner is that the file was handed over to some other advocate and there was communication gap between him and the advocate, as such the delay is occurred. The lower Court, having observed that in the light of the modern means of communication it is for the petitioner to have frequent contact with his advocate and the reasons assigned by the petitioner
are not convincing for condoning the delay, dismissed the application. It has to be seen that since the suit was filed for declaration of title and for recovery of possession, the rights of the parties have to be decided according to the merits of the case. It is always better if the matters are disposed of on merits rather than on technicalities. Though it appears that there are some laches on the part of the petitioner, the lower Court ought to have given him an opportunity to prosecute his appeal at least on some conditions.
In the circumstances, on condition of payment of costs of Rs.10,000/- i.e., Rs.5,000/- (Rupees Five Thousand only) to the Mandal Legal Services Authority, Tenali, Guntur District and Rs.5,000/- (Rupees Five Thousand only) to the other side, within a period of four (4) weeks from today, the CRP stands allowed and consequently I.A. No.589 of 2009 in A.S. No. 258 of 2006 stands allowed, failing which this CRP as well as I.A. No.589 of 2009 in A.S. No. 258 of 2006 on the file of the XI Additional District and Sessions Judge (Fast Track Court), Tenali, Guntur District stands dismissed.
___________________ B. CHANDRA KUMAR, J.
Date: 21.03.2013 Nsr
2 issues framed by the court
Whether an application for restoration of an appeal dismissed for default should be allowed despite delay.
Whether the lower court required giving an opportunity to prosecute the appeal on conditions instead of outright dismissal.
Petitioner
Respondent
B. Chandra Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
