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2009 DIGILAW 293 (AP)

K. Srinivas v. K. Govind

2009-04-20

G.BHAVANI PRASAD

body2009
ORDER :- The civil revision petition is directed against the order of the I Additional Chief Judge, City Civil Court, Secunderabad, dated 19.1.2009 in I.A. No.1978 of 2008 in ASSR No.4889 of 2008. 2. The revision petitioner filed I.A. No.1978 of 2008 in the unregistered appeal for condonation of delay of 467 days in filing the appeal against the ex parte preliminary decree in OS No.369 of 2005 on the file of III Senior Civil Judge, City Civil Court, Secunderabad, dated 21.12.2006. The petitioner claimed that his father died on 26.2.2006 leaving his sons as his legal representatives including the plaintiff and the other defendants in the suit and the other brothers colluded to keep the revision petitioner in dark creating an impression that after the death of the father, the suit was withdrawn. The revision petitioner was suffering from heart problem and high blood pressure and was totally under bed rest. In the meanwhile, he was set ex parte in the suit and an ex parte preliminary decree was passed on 21.12.2006. It is only on receiving the notice of final decree proceedings that he came to know about the ex parte preliminary decree and then, he filed I.A. No.115 of 2007 (2008?) to condone the delay of 405 days and I.A. No.116 of 2008 to set aside the ex parte preliminary decree. Both the petitions were dismissed, which was confirmed by the High Court and hence, he had to file the appeal along with a petition for condonation of delay. 3. This claim of the revision petitioner was contested by the plaintiff contending that the very affidavit of the revision petitioner shows that he was acquainted with the case, but did not concentrate on the same and the plaintiff never represented or created an impression that he will withdraw the suit. The delay was not at all explained by the revision petitioner and the alleged ill-health of the revision petitioner is false. In fact, the revision petitioner engaged an advocate and took time for filing written statement before being set ex parte on 15.11.2005. No attempt was made to get the ex parte order set aside during the pendency of the suit till 21.12.2006. The revision petitioner also participated in IA. No.1308 of 2007 for appointment of commissioner much prior to his filing a petition to set aside the ex parte preliminary decree. No attempt was made to get the ex parte order set aside during the pendency of the suit till 21.12.2006. The revision petitioner also participated in IA. No.1308 of 2007 for appointment of commissioner much prior to his filing a petition to set aside the ex parte preliminary decree. In fact, the High Court in its order observed about these facts and the conclusions in the proceedings arising out of the same litigation estop the revision petitioner from raising the issue again in this petition. The plaintiff, therefore, desired that in the absence of any sufficient cause for condonation of the delay, the revision petitioner has to fail. 4. In the impugned order, the first appellate Court noted that the revision petitioner remained ex parte without filing written statement in the suit and his petition in I.A. No.115 of 2007 (2008) to have the ex parte decree set aside and the revision petition against its dismissal, failed. The first appellate Court presumed from the same that the revision petitioner was aware of the ex parte decree at least when he filed the petition to set aside the ex parte decree or a revision petition against its dismissal and he cannot claim that he came to know about the ex parte preliminary decree only after receipt of the notice in the final decree proceedings. The first appellate Court also referred to the absence of any explanation as to what prevented the revision petitioner from filing an appeal at least after he came to know about the ex parte preliminary decree. As the delay was not explained by any material placed by the revision petitioner before the Court, more so, about the alleged understanding to withdraw the suit after the death of the father, the first appellate Court dismissed the application also because of the total failure of the revision petitioner to produce any record about his alleged ailments. 5. The revision petitioner challenged the said order in this revision contending that the first appellate Court failed to appreciate the attempts of the revision petitioner to have the ex parte preliminary decree set aside through I.A. No.115 of 2007 (2008) before the trial Court itself. 5. The revision petitioner challenged the said order in this revision contending that the first appellate Court failed to appreciate the attempts of the revision petitioner to have the ex parte preliminary decree set aside through I.A. No.115 of 2007 (2008) before the trial Court itself. The first appellate Court also failed to appreciate that the period of pendency of I.A. No.115 of 2007 (2008) and a revision against its dismissal further explained the inability of the revision petitioner to file the appeal before the delay of 467 days. The revision petitioner also referred to the Will executed by his father, which came to light subsequently and without which, there was no defence that could have been taken in the suit. The revision petitioner, in effect, contended that it is only after the Will coming to light, he filed I.A. No.115 of 2007 (2008) and then the appeal. 6. Heard Sri Ch. Srinivas, learned Counsel for the revision petitioner and Sri Nazir Ahmed Khan, learned Counsel for the plaintiff and Sri Akkam Eshwar, learned Counsel for respondents 3 to 5. Sri Nazir Ahmed Khan filed a copy of the order of this Court in CRP No.1754 of 2008, dated 25.4.2008. 7. The only point that arises for consideration is the justifiability and reasonableness of the order of the first appellate Court in refusing to condone the delay in filing the appeal. 8. The order in CRP No.1754 of 2008, dated 25.4.2008 between the same parties arising out of the dismissal of I.A. No.115 of 2008 in as No.369 of 2005 shows that the present revision petition in his application to have the delay condoned in filing a petition to set aside the ex parte preliminary decree, raised identical contentions as justifying the delay of 405 days. This Court noted that the trial Court observed that the present revision petitioner intentionally remained ex parte in the suit and allowed it to be decreed and thereafter he kept quiet for more than one year before filing I.A. Nos.115 and 116 of 2008. The learned Judge further observed on perusal of the material available on record, that the present revision petitioner appeared in the final decree proceedings, engaged an advocate and then filed the applications for condonation of the delay and to set aside the ex parte preliminary decree. The learned Judge further observed on perusal of the material available on record, that the present revision petitioner appeared in the final decree proceedings, engaged an advocate and then filed the applications for condonation of the delay and to set aside the ex parte preliminary decree. This Court refused to believe the alleged impression of the revision petitioner that the suit would have been withdrawn and holding that there were no cogent reasons for the inordinate delay, confirmed the order attacked in revision. 9. Admittedly, the order in CRP No.1754 of 2008 had become final and conclusive between the parties and it is firstly inconceivable that there could be a contrary finding on facts between the same parties on identical allegations. Secondly, the very filing of I.A. No.115 of 2008 implied that the revision petitioner had come to know of the ex parte preliminary decree at least on the date of its filing or since some reasonable time before its filing and there was absolutely no explanation as to why the revision petitioner could not have filed the appeal, if necessary, with any petition for condonation of delay simultaneously in the absence of any bar in fact or law for filing such an appeal straight away. Without going into the claims of the revision petitioner about his being induced to believe that the suit would be withdrawn or that a Will claimed to have been executed by their father made all the difference to the rights and interests of the parties in the subject properties, which are beyond the scope of the present enquiry, it has to be necessarily concluded that in the absence of any oral or documentary evidence about the nature of health of the revision petitioner and in view of the other circumstances stated above, the refusal of the first appellate Court to condone the delay in filing the appeal cannot be considered to be an incorrect exercise of jurisdiction. 10. However, it should be made clear that any remedies, which the revision petitioner may have under law either due to any impressions he was carrying under the circumstances claimed by him about the continuance or otherwise of the suit or due to any Will executed by his father, are not, in any way, prejudiced by these proceedings. 11. Subject to the above observation, the civil revision petition is dismissed without costs.