Andhra Pradesh High Court - Amravati
The vs Allu Swaminaidu And on 24 September, 2021
Author: D.Ramesh
Bench: D.Ramesh
THE HONOURABLE SRI JUSTICE D.RAMESH
CIVIL REVISION PETITION No.807 of 2021
ORDER:
The Petitioners are the defendants in the suit in O.S.No.1721/2006 on the file of learned I Additional Junior Civil Judge, Tirupati. Aggrieved by the orders passed in I.A.No.892/2016 in O.S.No.1721/2006, the present revision is filed.
2. I.A.No.892/2016 in O.S.No.1721/2006 is filed under section 5 of Limitation Act praying the Court to condone the delay of 120 days in filing the petition under Order IX Rule 13 CPC to set aside the exparte decree passed against the petitioners/defendants on 22.4.2016.
3. The brief facts are the deceased 1st petitioner is the 1st defendant in the suit and the plaintiff filed the suit against him for declaration of title and delivery of possession. In the said suit, the deceased petitioner has filed written statement. The suit was posted on 07.4.2015 for trial on costs of Rs.200/- payable by the plaintiff to the defendant and either the plaintiff nor her counsel represented the matter. Hence, the Court below dismissed the suit for default on the said date. Under the bonafide impression that the suit proceedings were finally ended in his favour and by that time itself he is chronic patient of paralysis with aged about 70 years and he is also undergoing dialysis due to kidney failure, in view of the same, he is forced to move to his son's house at Ambedkar Colony, Mangalam, because no one is present to look after him at his house in Satyanarayanapuram, Tirupati. He is taking regular medical treatment at SVIMS, Tirupati due to his serious threat on his life. He stated that the plaintiff filed E.P.No.38/2016 for delivery of possession 2 DR,J CRP.No.807 of 2021 and at that time he was admitted in hospital and he came to the knowledge through his neighbours at Satyanarayanapuram about filing of E.P by D.Hr and he do not know the year when he was in hospital but at the time of decree in the year 2008 he was in hospital. The respondents filed their counter denying the allegations made by the deceased petitioner. The suit filed by the respondent/plaintiff for mandatory injunction for removal of the structures constructed in the plaint schedule property in the year 2006. After serving notice to the defendant, he engaged an advocate and filed his written statement. Thereafter the plaintiff commenced the trial on 30.8.2007 and posted the matter for cross-examination on 13.9.2007. Thereafter at the request of the defendant it was adjourned to 10.10.2007 and on 31.10.2007 for non-representation on behalf of the defendants and finally the Court decreed the suit on 10.4.2008. Thereafter they have filed E.P.No.336/2008 for delivery of possession. At this juncture, the petitioners/defendants obstructed for the same and pressed into service under Section 5 of Limitation in I.A.No.681/2009 and the same was allowed and set aside the decree. The suit is restored to file.
4. Even after restoration of the suit, the defendants evaded to cross-examine the witness and as directed by the Court, substitute service was ordered and accordingly, the matter is posted on 20.4.2016. Even on that day, defendants did not turn up and finally the suit is posted to 22.4.2016 and on that day the suit is decreed with costs and granted 3 months time for execution of the same. On expiry of the said period, the respondent filed E.P.No.38/2016 for delivery of possession. At that juncture, the petitioners filed the 3 DR,J CRP.No.807 of 2021 present I.A. for set aside the exparte order with a delay of 120 days. Hence there are no bonafides on the part of the defendants. It is only to defeat the rights of the petitioner, the respondents have intentionally avoid receiving the notice and requested to dismiss the I.A. Considering the pleadings and also the judgments relied on by the counsel appearing on the Court below has passed the following order:
"Hence, the contention raised by the petition is not at all supported by the contention raised by any documentary proof. The I.A.No.681/2009 is allowed on 31.02.2015 and the petitioner after receipt of summons has kept quiet for sufficient time and now they have come forward with the present petition without any sufficient and reasonable grounds. This court do not find any cogent evidence to condone the delay of 120 days as alleged by the petitioner and this Court is not satisfied with the reasons put forward by the petitioner to condone the delay and therefore, the petition deserves to be dismissed. Accordingly, the point is answered".
5. Aggrieved by the said orders, the present revision is filed. Learned Counsel appearing on behalf of the petitioners contended that the defendant is an aged person and he is taking medical treatment regularly in view of the old age, he moved from his place i.e. Satyanarayanapuram to his son's place at Ambedkar Colony, Mangalam. By virtue of the same, the advocate could not be able to contact the petitioner, hence he do not know about the restoration of suit. He submits that initially the suit is decreed in the year 2008 and later, the plaintiff filed E.P.No.366/2008 for delivery of possession and knowing the same, the petitioner filed I.A.No.681/2009 and later the same was allowed on 30.01.2015 and the petitioner has filed written statement and the same was posted for settlement of issues on 05.02.2015. Subsequently, the matter got dismissed for non- prosecution of the respondents and the petitioner is under bonafide impression that the suit is dismissed against the petitioner. He do not 4 DR,J CRP.No.807 of 2021 know about the restoration of the suit because subsequently, he admitted into the hospital and he has also undergone dialysis for kidney problem. By virtue of his health condition, he has moved from his place of residence to his son's place of residence and he has no contact with the advocate. In view of the same, he does not know about the restoration of the suit and further proceedings in the suit. To support his contention, he has also filed medical record vide Ex.A1 to A8. For not knowing about the decree and the delay for filing the set aside application is not intentional.
6. Learned Counsel appearing on behalf of the respondent has submitted that the petitioners have deliberately avoiding the suit proceedings. In fact, the suit is filed for declaration of title and delivery of possession in the year 2006 and for non-cooperation at the time of trial, the said suit was decreed on 10.4.2008 and after filing E.P.No.38/2016, they have filed an application with a delay of 358 days and the said I.A. was allowed and the suit was restored and though the petitioners sent the notices, the defendant evade the notices purposefully and with no option, the respondent/plaintiff has taken substitute service and the same was published in Saakshi daily newspaper. Despite the same he has not turn up. Now after filing the present E.P.No.38/2016 delivery of possession was ordered and at that point of time and with a delay of 120 days, the present application is filed. On perusal of the conduct of the defendant, it clearly discloses that he wantonly dragging the matter. There are no bonafides in the present application.
7. To support the rival contentions, learned Counsel for the petitioners have relied on the judgment of the High Court of Andhra 5 DR,J CRP.No.807 of 2021 Pradesh in State of A.P., and another vs. Allu Swaminaidu and others1 and also the judgment of the Hon'ble Supreme Court reported in Vedabaialias Vaijayantabai Baburao Patil vs. Shantaram Baburao Patil and others2. Learned Counsel for the respondent/defendant relied on the judgment of the Hon'ble Supreme Court reported in between Collector, Land Acquisition, Anantnag vs. Katiji and others3 .
8. On perusal of the entire material though the respondent/plaintiff filed the suit for declaration of title in the year 2006 even on earlier occasion, the suit is decreed once and after restoration again the suit is dismissed for non-prosecution by the respondent/plaintiff and again the said suit was restored in the year 2015. After restoration of the suit, the contention of the petitioners is that there is no information with regard to the restoration of the suit. Hence there is no deliberate intention to evade notices, though the respondents have taken substitute notice but the same was not in the knowledge of the petitioners. On perusal of the record, it clearly establishes that though he has not admitted in the hospital, but there are evidences that he is taking treatment since 2015 and as held by the Apex Court and followed by High Courts in various judgments that in exercising the discretion under section 5 of the Limitation Act, the court has to adopt a pragmatic approach. In general, the courts have to follow the principles of substantial justice only by way of disposing the matters on merit after elaborate trial. No doubt in the instant case, on the earlier occasion, there is default on both sides. But after restoration of the suit in the year 2015, the reasons mentioned in the affidavit 1 ALT 2000(1) 444 2 AIR 2001 Supreme Court, 2582 3 AIR 1987 Supreme Court 6 DR,J CRP.No.807 of 2021 have to be taken into consideration. A lenient view and an opportunity have to be given to the parties.
9. Considering the same, the orders passed by the Court below in I.A.No.892/2016 in O.S.No.1721/2006 is set aside and the delay of 120 days is condoned and both parties are directed to cooperate and the Court may dispose of the main suit on merits expeditiously within six (06) months from the date of receipt of a copy of this order.
10. Accordingly, the Civil Revision Petition is allowed. There shall be no order as to costs.
As a sequel thereto, the miscellaneous petitions, if any, pending in this Petition shall stand closed.
________________ JUSTICE D. RAMESH Date:24.9.2021 RD 7 DR,J CRP.No.807 of 2021 THE HONOURABLE SRI JUSTICE D.RAMESH CIVIL REVISION PETITION No.807 of 2021 Dated 24.9.2021 RD