R. Krishna Murthy v. K. Ramanjaneyulu

THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO C.R.P.Nos.5825 & 6020 of 2010 COMMON ORDER:

Heard Sri Atchuthananda Dondeti, learned counsel for the petitioners and Sri J.Ashok, learned counsel for the respondents. 2.

These two Revision Petitions arise out of the same suit between the same parties. Therefore, they are being disposed of by a common order.

3.

Learned counsel for the petitioners states that only the 1st respondent is a necessary party in these Revision Petitions and the other respondents are not necessary parties. 4.

The petitioners herein are the plaintiffs in the above suit. They filed for a perpetual injunction against the respondents alleging that they are owners of the plaint schedule property and that the respondents, who are adjacent owners, were trying to dispossess the petitioners from the plaint schedule property. The suit was filed before the Senior Civil Judge, Uravakonda. It was decreed on 31-12-1996.

5.

Thereafter, 1st respondent herein preferred A.S.No.80 of 2001 before the Additional Senior Civil Judge, Anantapur and the said appeal was allowed on 05-12-2002, the judgment of the trial Court was set aside, and the matter was remitted back to the Court of the Junior Civil Judge, Uravakonda for fresh disposal. The appellate Court also directed the trial Court to appoint an Advocate Commissioner to get the suit land measured within the suit boundaries and disposed of afresh.

6.

Thereafter, I.A.No.15 of 2003 was filed to implead the legal representatives of defendant Nos.7 and 9 after the remand. 7.

The suit was posted to 28-03-2005 for payment of batta in the said I.A.

8.

Since the petitioners did not attend the Court on that day, the trial Court not only dismissed the suit but also dismissed the said I.A.

9.

Thereafter, the petitioners filed I.A.No.339 of 2005 to condone the delay of 139 days in seeking to set aside the order dismissing O.S.No.57 of 1990 for default and another application to set aside the order dismissing the suit for default. 10.

They also filed I.A.No.341 of 2005 to condone the delay of 162 days in seeking to set aside the order dismissing I.A.No.15 of 2003 on the ground of non-payment of batta and another application to set aside the said order.

11.

In the affidavits filed in support of the I.A.Nos.339 and 341 of 2005, 2nd petitioner stated that 1st petitioner is his brother, that 2nd petitioner was incharge of the litigations, and on account of ill health, he did not meet his advocate on 28-03-2005 resulting in dismissal of I.A.No.15 of 2003 for non-payment of batta and also the suit. He also stated that he was taking treatment at Bellary in connection with an accident and was advised bed rest. 12.

These applications were contested by 1st respondent contending that they are filed only to drag on the proceedings. 13.

By order dt.28-09-2010, the trial Court dismissed both the applications stating that the medical certificate filed by the

petitioners indicated that the 2nd petitioner was suffering from right sided Haemiparesis with hyper tension and merely because 2nd petitioner was suffering from hyper tension, he cannot claim that he was disabled from moving the Court immediately for restoration of the suit or I.A.No.15 of 2003. It also observed that 2nd petitioner could as well instruct the 1st petitioner to attend the matter, if he had any medical problem. It observed that since the petitions had been pending since 2005, it showed that the petitioners had no interest in the litigation. 14.

Challenging the same, these Revision Petitions are filed. 15.

The suit had been filed in the year 1990 before the Junior Civil Judge, Uravakonda by the petitioners and the same had been decreed on 31-12-1996. But on appeal, in A.S.No.80 of 2001 filed by 1st respondent, the Additional Senior Civil Judge, Anantapur had set aside the said judgment on 05-12-2002 and remanded the matter back to the trial Court. Admittedly on 28-032005, the petitioners could not attend. According to the petitioners, the 2nd petitioner, who was looking after the litigation, was unwell. Medical Certificate had also been filed in support of the said plea. Merely because the petitioners were absent on that single date, the Court below had dismissed not only the suit but also I.A.No.15 of 2003.

16.

No doubt applications (I.A.Nos.339 and 341 of 2005) to condone the delay in seeking restoration of the suit by restoring I.A.No.15 of 2003 were filed to condone delay of 139 days and 162 days, respectively.

17.

The Court below, having noticed that the Medical Certificate

filed by the 2nd petitioner indicated that he was suffering from hyper tension and also right sided Haemiparesis, ought to have exercised its discretion to condone the delay in filing the two applications at least by imposing some nominal costs, in case it felt that the explanation was not fully satisfactory since the delay is not substantial.

18.

Therefore, I am of the opinion that the impugned order cannot be sustained. They are accordingly set aside on condition of the petitioners depositing costs of Rs.500/- to the credit of the suit within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the 1st respondent is permitted to withdraw the same without furnishing any securing. In default of paying of costs as directed, these Revision Petitions were stand dismissed.

19.

Accordingly, both the Civil Revision Petitions are allowed subject to the above conditions. Sine the suit is old suit, the Court below shall endeavour to dispose of the same, preferably, within a period of six months from the date of receipt of a coy of this order. No costs.

20.

As a sequel, the miscellaneous petitions pending, if any, shall stands closed.

__________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 28-10-2015 kvr