Smt. Bathini Laxmi v. Bathini Shiva Lingam

THE HON'BLE SRI JUSTI CE M.SEETHARAMA MURTI Civil Revision Pet it ion No.5 2 3 9 of 2 0 1 2 ORDER:

This Civil Revision Petition, under Section 115 of the Code of Civil Procedure, 1908, ('the Code', for brevity), is filed by the unsuccessful plaintiff/ petitioner, assailing order, dated 07.08.2012, of the learned Principal Junior Civil Judge at Sangareddy, passed in I.A.No.1941 of 2010 in O.S.No.632 of 2007. 2 .

I have heard the submissions of Sri K.Venkateswerllu, learned counsel for the petitioner/ plaintiff, and of Sri S.Ganesh Rao, learned counsel for the 3rd respondent/ 3rd defendant. I have perused the material record.

3 .

To begin with, it is to be noted that the plaintiff brought the suit against the defendants 1 to 3 for partition. The 3rd defendant who claimed to have purchased the property had alone entered appearance and filed the written statement inter alia contending that the suit is a collusive suit and that only one property is the subject matter of the suit and that the plaintiff has no manner of right to seek partition of the said property, which was purchased under a regular sale deed by the 3rd defendant, and that the suit is also barred by the law of limitation and that in view of the provisions in the Hindu Succession Act, 1956, the plaintiff has no share in her father's property.

4 .

After the issues are settled for determination, the suit was posted for plaintiff's evidence. However, the plaintiff failed to be

present before the trial Court despite the Court posting the suit subject to condition that on the failure of the plaintiff to produce evidence on the said date, the suit will be dismissed. Therefore, the said suit was dismissed for default, on 10.03.2010. Thereafter, the plaintiff filed an application requesting to restore the suit to file after setting aside the order of dismissal for default, dated 10.03.2010. Since a delay of 25 days had occasioned in filing the said petition, the subject application is filed under Section 5 of the Limitation Act, 1963, seeking condonation of the said delay. On merits and by the order impugned, the trial Court dismissed the said application. Therefore, the plaintiff is before this Court. 5 .

In support of the request for condonation of delay, the case of the plaintiff, in brief, is this: - 'The suit was posted to 10.03.2010 for her evidence. On the said day, she could not appear before the Court and give evidence on account of her ill health. She suffered from jaundice. She went to several villages for taking Ayurvedic treatment. For that reason, she could not contact her counsel. For her absence on the said date, the trial Court dismissed the suit for default. She filed a petition for condonation of delay, as delay had occasioned in filing the application seeking restoration of the suit to file after setting aside the order of dismissal for default. The delay had occasioned only due to the stated reasons and not due to the wilful and wanton reasons. If the delay is not condoned the plaintiff suffers serious loss.'

6 .

The case of the 3rd defendant who is resisting the said application, in brief, is this: 'The suit was posted to 10.03.2010

subject to the condition that on the failure of the plaintiff to produce evidence on the said date, the suit will be dismissed. The plaintiff failed to appear before the Court on the said date. As stated in the written statement of the 3rd defendant, the suit is a collusive suit. The 3rd defendant was informed by the 1st defendant that he is the only legal heir of one late Laxmaiah and that he succeeded to the property of the said Laxmaiah. The 1st defendant, as the absolute owner of the suit schedule property, executed a registered sale deed, dated 22.01.1994. Later, the plaintiff brought the instant suit in collusion with the defendants 1 and 2. The 3rd defendant is in possession and is raising crops in the suit schedule property. The suit, which is filed after 13 years, is barred by the law of limitation.

The trial Court granted reasonable and fair opportunities to the plaintiff to give evidence. Further, despite conditional posting of the suit, the plaintiff failed to appear and prosecute her case. Hence, the trial Court dismissed the suit. The allegation that the plaintiff suffered from jaundice is a false and invented allegation. The petition is liable to be dismissed.'

7 .

The trial Court, as already noted, dismissed the petition of the plaintiff, which is filed seeking condonation of delay of 25 days in seeking restoration of the suit to file after setting aside the order of dismissal for default, dated 10.03.2010.

8 .

At hearing, both learned counsel advanced arguments in line with the respective pleadings of the parties, which are stated supra, in detail.

9 .

I have given earnest consideration to the facts and submissions.

1 0 .

The contentions of the 3rd defendant on the merits of the main matter, which are stated in the counter, are not germane for consideration for the disposal of the subject application wherein the plaintiff is seeking condonation of the delay in seeking restoration of the suit, which was dismissed for default. While deciding the application seeking condonation of delay, the Court is required to examine as to whether any valid explanation is offered and sufficient cause is shown for condonation of delay. The plaintiff, no doubt, has not filed any medical certificate showing that she suffered from jaundice.

The learned counsel for petitioner/ plaintiff submits that since the plaintiff took Ayurvedic native/ country treatment, she could not produce any medical report/ certificate in connection with her illness and treatment. The main contention of the 3rd defendant is that the plaintiff is not entitled to the relief claimed in view of the plaintiff's previous conduct, which shows that the plaintiff had not availed several earlier opportunities granted to her by the trial Court before the date on which the suit was dismissed for default. As per the law well settled, while considering the merits of an application filed for condonation of delay, the Court has to only consider the valid reasons, if any, for the delay, but the Court cannot take into consideration the aspect of the plaintiff's non appearance on previous dates of adjournments and cannot stretch the matter to cover circumstances which had occurred prior to the date on which the suit was dismissed for default, as the said conduct prior to the

said date stands over looked and condoned. Therefore, in the considered view of this Court, on the basis of the plaintiff's previous conduct and her earlier absence on the dates of adjournments prior to the dismissal order, the plaintiff's request for condonation of delay cannot be refused. In the considered view of this Court, the delay of 25 days is not an abnormal delay. 1 1 . Having thus given detailed and thoughtful consideration, this Court is satisfied that the explanation offered by the plaintiff can be considered as sufficient cause for condonation of the delay and the delay, which is not abnormal, can be condoned and the plaintiff can be given an opportunity to have her cause decided on merits, as such a course would sub-serve the ends of justice. In any view of the matter, the delay cannot be said to be deliberate and unjustified in the facts and circumstances of the case. Viewed thus, this Court finds that the plaintiff's request for condonation of delay merits consideration and that the order impugned, which is unsustainable, brooks interference.

1 2 .

In the result, the Civil Revision Petition is allowed and the order impugned is set aside. Consequently, I.A.No.1941 of 2010 in O.S.No.632 of 2007 on the file of the Court of the learned Principal Junior Civil Judge, Sangareddy, is allowed. The trial Court shall now take up the interlocutory application filed by the plaintiff seeking to set aside the order of dismissal of the suit for default and dispose of the same on merits and in strict accordance with the procedure established by law, however, after giving an opportunity to the 3rd defendant to file counter, if any. The trial Court shall endeavour to dispose of the afore-stated I.A. within a

period of one (01) month from the date of receipt of a copy of this order.

There shall be no order as to costs.

Pending miscellaneous petitions, if any, shall stand closed. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ M.Seet h ar am a Mu r t i, J 28th August, 2017 Bvv