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2014 DIGILAW 503 (AP)

Putta Obul Reddy v. Gunji Venkata Narasamma

2014-04-02

B.CHANDRA KUMAR

body2014
ORDER 1. This revision is directed by the petitioner herein, who is the plaintiff in the suit against the order dated 31.10.2012 in I.A.No.278 of 2012 in O.S.No.29 of 2009 on the file of I Additional Senior Civil Judge, Nellore. The suit was filed for specific performance of agreement of sale against one Gunji Venkata Narasamma, who died on 14.09.2009 during the pendency of the suit. The petitioner herein filed I.A.No.278 of 2010 to bring the 2nd respondent herein as the legal representatives of the said deceased Venkata Narasamma, however the incorrect provision was quoted as under Order 1 Rule 10 CPC. The lower Court dismissed the said petition on the ground that it was filed under incorrect provision of law. Subsequently, the petitioner filed I.A.No.827 of 2011. However, no application to set aside the abatement and no application to condone the delay were filed. The lower Court dismissed the same holding that no application for condonation of delay was filed and therefore, the petition was not maintainable. Thereafter, the petitioner filed the impugned petition in I.A.No.278 of 2012 to condone the delay of 729 days in filing the petition to set aside the abatement. However, the said petition was dismissed on the ground that the petitioner failed to explain the delay. The petitioner contended that he had been suffering joint pains and back pain and was taking treatment. The lower Court dismissed the application holding that since no medical certificate was filed, the contention of the petitioner cannot be accepted. 2. Sri P.Sridhar Reddy, learned counsel for the petitioner submits that the lower Court ought to have considered that the petitioner had earlier filed I.A.No.278 of 2010 at the initial stage to bring the legal representatives, but it was dismissed on the ground that incorrect provision of law was mentioned, and this circumstance and ill health of the petitioner were not taken into consideration. It is also submitted that the counsel appearing for the defendant did not file any memo informing the Court about the death of the defendant in the suit. 3. The only point that arises for consideration is whether the delay is to be condoned? 4. As referred above, admittedly the petitioner filed I.A.No.278 of of 2010 under Order 1 Rule 10 CPC instead of filing an application under Order 22 Rule 4 CPC. 3. The only point that arises for consideration is whether the delay is to be condoned? 4. As referred above, admittedly the petitioner filed I.A.No.278 of of 2010 under Order 1 Rule 10 CPC instead of filing an application under Order 22 Rule 4 CPC. Normally, the Courts should not dismiss an application merely because it is filed under incorrect provision of law. If an application is filed quoting incorrect provision of law, it should be returned taking objection at the initial stage. When it is numbered without taking any objection, the petitioner would loose an opportunity to correct the mistake. No petitioner can be dismissed merely because incorrect provision of law is quoted. A party may appear in person and may not know the technicalities. It is the duty of the Court to assist ignorant, illiterate poor litigants. It is the duty of the Judge to give proper legal advice even in a case where it appears that the counsel for a party has quoted incorrect provision of law. If the applications are dismissed simply on the ground of non-mentioning of correct provision of law, it will result in multiplicity of proceedings and no useful purpose will be served. Admittedly, the petitioner herein has subsequently filed an application with correct provision of law, but again he did not file any application to condone the delay and an application to set aside the abatement caused due to the death of the defendant. It appears that these petitions were also not returned. When a party has not followed the correct procedure of law and has not filed the relevant application, instead of registering such application, the Court should return the same to enable the parties to file necessary petitions at the initial stage. The very purpose of scrutinizing the petitions is to correct such clerical mistakes. It is most unfortunate that the counsels appearing for the parties are also not making any sincere efforts to correct such mistakes at the initial stage and ultimately the parties will be put to irreparable loss. Every counsel has a great responsibility towards his client and the Court. They must study the facts of the case and legal position. They have to assist the party who engaged him and also the Court. Because of the irresponsible attitude of many counsel, the innocent parties are suffering. 5. In the circumstances, the delay is condoned. Every counsel has a great responsibility towards his client and the Court. They must study the facts of the case and legal position. They have to assist the party who engaged him and also the Court. Because of the irresponsible attitude of many counsel, the innocent parties are suffering. 5. In the circumstances, the delay is condoned. The civil revision petition is allowed. However, having regard to the delay, I consider it just and reasonable to allow the revision petition on payment of costs of Rs.1,000/- (Rupees one thousand only) to the District Legal Services Authority, Nellore within a period of four weeks from today. On payment of such costs, I.A.No.278 of 2010 filed by the petitioner to bring the legal representative of the defendant, stands allowed.