Andhra Pradesh High Court - Amravati
G Adilakshmi, E.Godavari Dist vs K Apparao, E.Godavari Dist on 29 September, 2023
HON'BLE DR. JUSTICE K. MANMADHA RAO
CIVIL REVISION PETITION No.4356 of 2016
ORDER :
This Civil Revision Petition is preferred against the order, dated 19.04.2016 passed in I.A.No.552 of 2008 in O.S.No.82 of 2004 on the file of the Principal Junior Civil Judge, Amalapuram (for short "the trial Court").
2. The impugned application in I.A.No.552 of 2008 in O.S No.82 of 2004 has been filed by the petitioner/ defendant before the trial Court under Section 5 of Limitation Act to condone the delay of 1420 days in filing the petition under Order 9 Rule 13 CPC.
3. Originally the respondent/plaintiff filed a suit for recovery of money basing on the alleged suit promissory ntoe dated 28.10.2001 which is rank forgery. The petitioner is residing in Mumbai since 20 years. Recently she came to Pulletikurru village and came to know that the said person filed suit in OS No.82 of 2004 on the foot of promissory note which was forged by him. Subsequently summons were not served on her and the Court ordered publication. Subsequently she was set ex parte and ex parte decree was 2 passed against her. There is no wilful laches on her part in not contesting in the said suit. As she is not living in Pulletikurru village, prays to condone the delay of 1420 days in filing the petition to set aside ex parte decree. The same was dismissed by the trial Court on the ground that there are no bonafides in the present petition and as the petitioner failed to explain inordinate delay of 1420 days cannot be condoned. Aggrieved by the same, the present civil revision petition came to be filed.
4. Heard Sri K. Sita Ram, learned counsel appearing for the petitioner and Sri C. Prakash Reddy and Sri S. Malla Rao, learned counsels appearing for the respondents.
5. During hearing, learned counsel for the petitioner submits that the order of the trial Court is contrary to law and facts, weight of evidence and probabilities of the case. He submits that the trial Court judge failed to consider the evidence both oral and documentary evidence while considering the application for condonation of delay of 1420 days in filing an application under Order 9 Rule 13 CPC. He further submits that the petitioner is residing in Mumbai since 20 years but the respondent wantonly filed a suit for 3 recovery of money basing on the alleged suit promissory note which is rank forgery. He further submits that there are no wilful laches on the part of the petitioner. Therefore learned counsel requests this Court to pass appropriate orders by setting aside the impugned order.
6. Learned counsel appearing for the respondents submits that the trial Court rightly concluded and dismissed the application of the petitioner because the petitioner has failed to explain day to day delay in filing petition under Order 9 rule 13 CPC and a publication was filed in Hindu Daily Newspaper, which was filed before the trial Court subsequently the petitioner engaged an advocate later she was set ex parte. He further submits that the allegation of the petitioner is that she is residing in Mumbai is absolutely false. He further submit that this respondent also filed EP No.265 of 2004 basing on the decree, and basing on the decree, the property which was in possession and enjoyment of the petitioner was attached and brought for sale, and after beat of tom tom in the village the property was delivered to him and the said property was handed over the court. Since then he was in possession and enjoyment of the 4 same. The petitioner in order to dispossess him from the schedule property as an afterthought filed the application without explaining the delay of 1420 days and hence prayed to dismiss the petition.
7. A perusal of the material available on record, this Court observed that, the respondent herein filed a suit in OS No.82 of 2004 before the trial Court and set ex parte decree was passed. Thereafter, the respondent filed E.P.No.365 of 2004 and the property was brought to sale then the respondent purchased the said property in court auction. In fact as contended by the respondent the petitioner was issued ration card in Pulletikurru village bearing No.WAPO44801900288 and it is not disputed by the petitioner by way of filing rejoinder. So, the contention of the respondent that the petitioner is having ration card in Pulletikurru village remained unchallenged. It is also the contention of the respondent that the ignorance of the petitioner about the suit and about the execution proceedings appears to be far from reality. Except simply mentioning in the present petition that recently about 15 5 days back when she came to Pulletikurru village she came to know that the suit is not convincing.
8. On a reading of the impugned order, this Court observed that the trial Court judge was totally oblivious of the existence of the evidence adduced on behalf of the petitioner in the form of oral evidence and also the report of handwriting expert which goes to show that the signature on the suit promissory note is a forgery. Further, expert opined that the signature available on the promissory note is not that of the petitioner. It is also observed that though there was an order for publication of notice in the Hindu daily newspaper there was no material on record to show the fact. Therefore, the trial Court erred in considering the material on record and mechanically dismissed the application.
9. Having regard to the facts and circumstances of the case and on considering the submissions made by the learned counsel for the petitioner, this Court is of the considered view that the order passed by the trial Court is not proper and correct and hence this Court deems fit to allow the present revision petition.
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10. Accordingly, the Civil Revision Petition is allowed. The order dated 19.04.2016 passed in I.A.No.552 of 2008 in O.S.No.82 of 2004 by the trial Court is hereby set aside. Further, since the suit pertains to the year 2004, the trial Court is directed to dispose of the same as expeditiously as possible, preferably, within three (03) months from the date of receipt of a copy of this order. There shall be no order as to costs.
11. As a sequel, all the pending miscellaneous applications shall stand closed.
______________________________ DR. K. MANMADHA RAO, J.
Date : 29 -09-2023 Gvl 7 HON'BLE DR. JUSTICE K. MANMADHA RAO CIVIL REVISION PETITION No.4356 of 2016 Date : 29.09.2023 Gvl