Allowed

Nayabu Sai Vamsi, v. Nayabu Shamaiah (died) Per L.Rs.

Telangana HC14 Nov 2014CRP/6283/2012

Case brief

AI extract

What is this about?

This judgment allows a Civil Revision Petition allowing restoration of a partition suit dismissed for default. The court condoned an 84-day delay, noting the petitioner is a minor and no substantive counter-affidavit was filed opposing the restoration. The impugned order is set aside.

What did the court decide?

The impugned order is set aside and the Civil Revision Petition is allowed; restoration ordered.

Nayabu Sai Vamsi, Vs Nayabu Shamaiah (died) Per L.Rs. — Partition | Telangana HC (2014)

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HONOURABLE SRI JUSTICE CHALLA KODANDA RAM CIVIL REVISION PETITION No.6283 OF 2012

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O R D E R:

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This Civil Revision Petition is filed against the order dated 06.09.2012 in I.A.No.1163 of 2012 in O.S.No.14 of 2009, passed by the learned IX Addl. District & Sessions Judge, Kamareddy, Nizamabad District.

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2) Heard the learned counsel for the revision petitioner and the learned counsel for respondent Nos.4 and 5. There is no appearance for other respondents opposing the petition.

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3) The revision petitioner is a minor represented by his mother, who filed O.S.No.14 of 2009 for partition. The said suit was dismissed for default on 24.04.2012. It was stated in the affidavit filed in support of the restoration petition that the guardian was suffering from ill-health and as such she could not approach her advocate in time and failed to appear before the Court and also failed to file the examination-in-chief affidavit. On that account, the trial Court had dismissed the suit for default.

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4) Only respondent Nos.4 and 5 had filed the counter affidavit denying the allegations. So far as respondent Nos.4 and 5 are concerned they are only purchasers of part of the property and nothing to do with the partition, which is the main relief in the suit.

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5) It is unfortunate that the learned Judge had not considered the fact that there is no counter filed opposing the petition by other defendants. Even in the counter affidavit filed by the respondent Nos.4 and 5, there was no contra material brought on record. The order of the learned Judge had recorded that there were no details mentioned. No doubt, the affidavit filed in support of the restoration

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petition is sketching, at the same time Court should not have lost sight that it is a partition suit filed by a minor and dispute relates to valuable property. The delay of 84 days cannot be said to be unduly long, whereunder the discretion of the Court could not be exercised. In the facts of the case, I am satisfied that the delay of 84 days is condonable and the petition is liable to be allowed.

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6) Accordingly, the Civil Revision Petition is allowed and the impugned order is set aside. However, it is made clear that the revision petitioner-plaintiff shall proceed with the trial of the case and cooperate with the Court and the parties shall cooperate with the Court in disposal of the main suit as early as possible, preferably within a period of one year from today.

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There shall be no order as to costs. Miscellaneous petitions, if any, pending shall stand closed.

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----------------------------------CHALLA KODANDA RAM, J

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Dated:14.11.2014. Ssv

Nayabu Sai Vamsi, v. Nayabu Shamaiah (died) Per L.Rs.

Case brief

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What did the court decide?

Nayabu Sai Vamsi, v. Nayabu Shamaiah (died) Per L.Rs.

Case brief

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What did the court decide?

What the court decided

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