Andhra HC (Pre-Telangana)
J. Ramachandraiah (Died) And Anr. vs Gangisetti Savithramma And Ors. on 28 April, 2006
Equivalent citations: 2006(4)ALD483, 2006(4)ALT645
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. The legal representative of the sole defendant in R.A. No. 272 of 2002, on the file of Additional Chief Judge, City Small Causes Court, Hyderabad, filed this C.R.P., aggrieved by the common order dated 13-2-2006, dismissing the I.A. No. 1008 of 2005.
2. J. Ramachandraiah, the deceased-1st petitioner is the tenant in respect of a non-residential premises belonging to the respondents. The respondents filed R.C. No. 232 of 2000, on the file of the Principal Rent Controller, Secunderabad, seeking eviction of the 1st petitioner from the premises. It was allowed on 5-7-2002. Aggrieved thereby, the 1st petitioner filed R.A. No. 272 of 2002.
3. The 1st petitioner died on 9-1-2004. Since no steps were taken to bring the legal representatives on record, the appeal was dismissed, as having abated, vide order dated 14-6-2004.
4. The 2nd petitioner filed I.A. Nos. 651 and 652 of 2004, with a prayer to condone the delay in filing the application to set aside the abatement, and for setting aside the abatement, respectively. Both the applications were dismissed on 26-10-2004, on the ground that the 2nd petitioner did not serve notices on the respondents. He filed I.A. Nos. 1008 and 1009 of 2005, with a prayer to condone the delay of 412 days in filing the applications to set aside the orders dated 26-10-2004, dismissing I.A. Nos. 651 and 652 of 2004. The trial Court dismissed the applications through a common order.
5. Learned Counsel for the petitioners submits that though his client was vigilant in pursuing the remedies, necessary steps could not be taken in time, on account of lack of co-operation on the part of the Counsel engaged by him, before the lower appellate Court. He contends that no prejudice would have resulted, had the delay been condoned.
6. Learned Counsel for the respondent, on the other hand, submits that the 2nd petitioner was indifferent through out, and having filed an application to condone the delay in filing the application to set aside the abatement, he did not take necessary steps and the Court was left with no alternative except to dismiss the applications.
7. The 1st petitioner died on 9-1-2004. No steps were taken within the stipulated time, to bring his legal representatives on record. It is quite possible that the legal representatives of the 1st petitioner were not aware of the pendency of the proceedings. Therefore, the conduct of the parties needs to be tested at least from the date on which they came to know about the pendency of the proceedings and the consequences flowing from the death of the sole appellant.
8. The appeal was dismissed on 14-6-2004, as having abated. The 2nd petitioner filed two applications, being I.A. Nos. 651 and 652 of 2004. One is for setting aside the abatement and the other is for condonation of the delay in filing the first application. Hardly any interest was evinced, after filing the applications referred to above. They were returned with certain objections before they were numbered. The applications were represented with a delay of 485 days. The appellate Court had shown indulgence and numbered the applications for condonation of the delay. Still, the applications had to be dismissed, on account of the failure of the 2nd petitioner, to take notices to the respondents.
9. Whatever may have been the justification for the 2nd petitioner in delayed submission of the applications for setting aside the abatement etc., he was not justified in not pursuing the applications with the required promptitude. The two applications filed by him were dismissed on 26-10-2004, and he woke up nearly after 15 months, that too when the respondents have taken out execution.
10. It is not as if the 2nd petitioner is not conversant with the Court procedure, or that he is residing in a remote village. The Court is situated, both from his residence as well as the schedule premises, within a couple of kilometers. Except pleading that the Advocate did not keep him informed of the progress, the 2nd petitioner did not plead or establish any other valid reason. The lower appellate Court had referred to the decided cases, as well as the facts of the present case, in detail, and took the view that the petitioner failed to establish sufficient cause, while seeking condonation of such enormous delay.
11. A close look at the proceedings from the beginning, discloses that there was delay at every stage. The application to set aside the abatement was filed with a delay. When such application was returned, the objection was complied with, after a delay of 485 days, and ultimately, when it came to be dismissed, an application for restoration is filed, with a delay of 412 days. The valuable rights that have accrued to the respondents, on account of the dismissal of the appeal, cannot be taken away under these circumstances.
12. There is another obstacle for the 2nd petitioner. He filed two separate applications, one for condonation of delay and the other for setting aside the orders, dismissing the two individual applications. Though the applications were disposed of through a common order, he ought to have filed two separate revisions. The present revision is filed only against the order in I.A. No. 1008 of 2005. No revision was filed against the order in I.A. No. 1009 of 2005, and it has become final. By operation of the principle of res judicata, the present revision becomes untenable.
13. For the foregoing reasons, the C.R.P. is dismissed.
14. Learned Counsel for the petitioners seeks time for eviction of the 2nd petitioner from the premises, by contending that his client needs reasonable time for searching and procuring alternative premises. This request is opposed by the learned Counsel for the respondents. Having regard to the fact that the tenancy is in existence since long time, the 2nd petitioner is granted time till 31-12-2006, for vacating the premises, subject to the condition that he shall file an undertaking to the effect that he shall put the respondents in possession of the schedule premises, not later than 31-12-2006, and subject to his paying the arrears of rent if any, by 30-6-2006. He shall pay the rent for every month on or before 5th of the concerned month. In default, it shall be open to the respondents, to proceed with the pending E.P.
15. There shall be no order as to costs.