The court dismissed a civil revision petition challenging a Single Judge's order condoning delay in restoring a suit dismissed for default. The High Court found no infirmity in the lower court's decision considering the plaintiff's illiteracy and advocate's death and held no prejudice existed.
Civil Revision Petition dismissed; no order as to costs.
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THE HON’BLE SRI JUSTICE CHALLA KODANDA RAM CIVIL REVISION PETITION No.4838 OF 2012
ORDER:
Heard Sri V. Venkata Mayur, learned counsel for the petitioner, and Sri Mohd. Abdul Saleem, learned counsel for the 1st respondent.
The 2nd defendant is the revision petitioner herein. Assailing the order, dated 16.08.2012, passed in I.A.No.85 of 2011 in O.S.No.8 of 2008 on the file of the Senior Civil Judge, at Kamareddy, she filed this revision.
The 1st respondent herein/plaintiff filed the suit for declaration of title and permanent injunction against defendants 1 and 2. Incidentally, the 2nd respondent happened to be the son-in-law of the 1st respondent. The suit was dismissed for default on 06.11.2009 and thereafter she filed an application to restore the same. Since there was delay of 479 days in filing the application to set aside the dismissal order, she filed an application to condone the said delay. In support of it, the plaintiff/1st respondent had stated on oath that she is a widower and her husband died on 05.05.1982 and since July, 2009, she became sick and was, in fact, bedridden. She further stated that because of her sickness, she was not in a position to instruct her counsel and she was discharged from hospital in the last week of October, 2009. She stated that notwithstanding the said discharge due to weakness, she was unable to give instructions to her advocate, though her advocate had informed her that suit is coming up for trial and he has been requesting adjournment on account of her ill health. As a matter of fact, her advocate had taken signatures on some typed papers making her to believe that the same is the affidavit in chief examination and he would file the same into the Court and would
inform her, when to be present for cross examination. Later, she came to know that her advocate died in a motor vehicle accident and on coming to know the same, she collected the file from his office and approached another advocate. Thereafter, she came to be aware of dismissal of the suit for default on 06.11.2009. She, being an illiterate and not having any male member to support her, could not immediately comprehend the steps to be taken and in that process some delay had occurred. Immediately, thereafter she approached the present advocate and filed an application to condone the delay. That application was resisted by the 2nd defendant, who had specifically averred that even as on 21.06.2010, she was approaching the revenue authorities as evidenced from the petition filed by her before the Revenue Divisional Officer, Kama Reddy, which would belie her contention that she was sick and bedridden. It is has also alleged that the 2nd defendant purchased the suit schedule property in the year 2002 and since then she is in possession and enjoyment of the same. Inasmuch as there is no
bona fides in the application filed seeking condonation of delay and also the reasons stated in the affidavit are not being supported by any medical certificate etc., no credence need be given to the said statements and prayed for dismissal of the I.A.
The Court below had accepted the application and having considered the fact that the advocate had all alone been representing the ill health of the plaintiff, which has been recorded on the docket order, found the statement to be true and condoned the delay. The fact that the advocate representing the plaintiff/1st respondent died in the accident was not denied in the counter. As can be seen from the very petition filed by the plaintiff, a copy of which has been filed before this Court, would go to show that she is an illiterate woman and not even
capable of affixing her signature even in Telugu. In other words, she is totally dependent on the advice of her counsel. As can be seen from the averments in the petition, prima facie, she alleges collusion against the 1st defendant, who is none other than her son-in-law, who got his name mutated in the revenue records and thereafter sold the suit schedule property in favour of the
2nd defendant. These are the matters which are required to be dealt with in the main suit. The fact that she is an illiterate woman, having no male support coupled with the fact that she is a widower and also the factum of her advocate passing away in the accident, need to be taken into consideration in considering the petition for codonation of delay. All these aspects were taken into consideration by the learned Single Judge in allowing the delay petition.
Both the learned counsel appearing for the petitioner as well as the respondents would fairly submit that virtually nothing is happening for the past two years on account of the fact that the office of the Presiding Officer has not been filled up, as none has been posted there, after transferring of the then Presiding Officer. In the circumstances,
no prejudice, as such, would be caused to the petitioner. Therefore, I do not see any reason to interfere with the order of the Court below, as the same does not suffer from any infirmity for this Court to exercise its jurisdiction under Section 115 of C.P.C.
Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs.
The miscellaneous petitions filed in the Civil Revision Petition shall stand disposed of.
_____________________ CHALLA KODANDA RAM, J 20.09.2014
KH
3 issues framed by the court
Whether the Single Judge erred in condoning the delay in filing the application to restore a suit dismissed for default.
Whether the High Court is justified in dismissing the civil revision petition under Section 115 of CPC in absence of prejudice caused to the petitioner.
Whether the ill health and death of the plaintiff's advocate justifies condonation of delay in a property suit.
1 provisions across 1 enactments
Civil Revision Petitioner/Decagon Group
1st Respondent/Plaintiff
2nd Respondent/Defendant
Challa Kodanda Ram
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
