Ponnala Komuraiah, v. Ponnala Agaiah,
THE HON'BLE SRI JUSTICE P.NAVEEN RAO CIVIL REVISION PETITION No.1864 OF 2017 DATED : 06.06.2017 Between :
Ponnala Komuraiah S/o.Late Bakkaiah, Aged 65 yrs, Occu : Agriculture, R/o.Medarametla Village, Mogullapalli Mandal, Jaya Shankar Bhupalpally District (erstwhile Warangal District) ..
Petitioner And Ponnala Agaiah S/o.Late Bakkaiah, Aged 50 yrs, Occu : Agriculture, R/o.Medarametla Village, Mogulapalli Mandal, Jaya Shankar Bhupalpally District, (erstwhile Warangal District) & others.
.. Respondents This court made the following :
- 2 - THE HON'BLE SRI JUSTICE P.NAVEEN RAO CIVIL REVISION PETITION No.1864 OF 2017 ORDER :
The first respondent herein instituted O.S.No.12 of 2009 on the file of II Additional Senior Civil Judge, Warangal, for partition. A preliminary decree was passed on 21.10.2013. Petitioner herein who is the first defendant in the suit preferred first appeal against the decree passed by the trial Court. As there is delay in filing the appeal, he moved I.A.No.1125 of 2016 praying to condone the delay of 826 days. The said I.A., was considered and the first appellate Court was not convinced with the reasons assigned in support of the petition for condonation of delay and the same was accordingly dismissed. Aggrieved thereby this revision is filed. 2.
As noted by the first appellate Court, the averments made in the affidavit filed in support of the said petition are vague. The first appellate Court noticed that after the cross-examination of P.W.1 for some extent and from the stage of further cross-examination of Pw.1, the first defendant stopped representing and appearing before the Court. No material was placed before the Court to show that there was amicable settlement and therefore, the petitioner herein was under the impression that since the issue was resolved the suit would not be prosecuted and would be withdrawn as assured. The first appellate Court also noticed that an Advocate Commissioner was appointed in the year 2014 and at that stage also petitioner kept quiet. Thus, the Court below was not persuaded to condone the delay of 826 days.
- 3 - 3.
Learned counsel for the petitioner sought to contend that petitioner was misled by the first respondent that he was agreeable for compromise and that he would not pursue the suit. Therefore, he did not prosecute the litigation further, under bonafide impression that his brother was agreeable for settlement. Petitioner was alerted only when an advocate commissioner visited the village and thereafter consequential steps are taken. 4.
Learned counsel representing the first respondent/plaintiff by referring to the averments made in the counter affidavit filed in I.A.No.1125 of 2016 contends that right of cross-examination was forfeited on 23.01.2013 and thereafter the case was posted for defendants evidence on three occasions and defendants evidence was closed, arguments were heard and then preliminary decree was passed on 21.10.2013. He further submits that plaintiff filed I.A.No.825 of 2013 for passing final decree. Notices issued in I.A.No.825 of 2013 were served on 17.01.2014 and 20.03.2014 and they remained ex parte. Advocate Commissioner was appointed. The Advocate Commissioner also issued notices through registered post twice, but those notices were refused on 20.01.2015 and on 04.12.2015. On behalf of the petitioner vakalat was filed on 31.12.2015.
5.
The above dates would show that it is not for the first time, the petitioner came to know of the decree passed by the trial Court only in December/January, 2016, as sought to be contended. When a preliminary decree was already passed on 21.10.2013 and notices were served in I.A.No.825 of 2013, at that stage atleast petitioner ought to have been alert in prosecuting the litigation, if what is claimed by the petitioner is true. As against the details
- 4 - furnished by the learned counsel for the first respondent/plaintiff, a perusal of the affidavit filed in support of the I.A, would go to show that the averments are vague. More so, when the delay is huge, the burden is on the petitioner to explain with cogent reasons and to show sufficient cause for not prosecuting the matter immediately and the delay occurred for valid reasons. 6.
I therefore, do not see any error in the decision arrived at by the first appellate Court, warranting interference by this Court. 7.
Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Revision shall stand closed.
__________________ P.NAVEEN RAO,J 6th June, 2017 Rds