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2020 DIGILAW 406 (AP)

Kalakata Krishnaiah v. B. Jayamma

2020-05-29

M.GANGA RAO

body2020
JUDGMENT M. Ganga Rao, J. - The petitioner is the defendant filed this Civil Revision Petition under Article 227 of the Constitution of India against the order dated 13-08-2019 in I.A.No.1050 of 2017 in O.S.No.236 of 2007 passed by the Additional Senior Civil Judge, Kadapa, whereby the petition filed under Section 5 of the Limitation Act to condone the delay of 541 days in filing the petition to set aside the ex parte decree dated 04.01.2016 is dismissed. 2. The respondents/plaintiffs filed the suit for partition and separate possession of 1/3rd share each of the plaintiffs 1 and 2 in the suit schedule property and for costs. The trial Court, after filing the written statement filed by the petitioner-defendant and after conducting trial based on the evidence of PWs.1 and 2, decreed the suit on 04.01.2016 and passed a preliminary decree in favour of the plaintiffs. Thereafter, the petitioner-defendant filed an application seeking to set aside the ex parte decree dated 04.01.2016. Since there was delay in filing the said application, the petitioner-defendant filed I.A.No.1050 of 2017 under Section 5 of the Limitation Act to condone the delay of 541 days in filing the application to set aside the ex parte decree. But the trial Court dismissed the said application by the order dated 13.08.2019. Aggrieved by the said order, the present Civil Revision Petition came to be filed. 3. Smt. M. Sivajyothi, learned counsel for the revision petitioner would contend that the trial Court made an observation that the judgment is not an ex parte judgment. The trial Court failed to see that the defendant did not enter into the witness box to prove his case as put forth in the written statement. She further contends that the trial court ought to have condoned the delay on the ground that the petitioner-defendant was admitted as inpatient. 4. In the facts and circumstances of the case and the submissions of the learned counsel and on perusal of the record, this court found that the trial Court dismissed I.A.No.1050 of 2017 filed for condoning the delay of 541 days in filing the application to set aside the ex parte judgment dated 04.01.2016, holding that the medical reports, which were filed on behalf of the petitioner, are prescriptions and medical bills and that no discharge summary is filed to show that he underwent treatment as inpatient for a longer period. The trial Court also held that it is for the petitioner to explain the delay of each day and that the judgment is not an ex parte judgment. The trial Court is not persuaded with the reasons assigned by the petitioner for condonation of delay. The findings given by the trial Court in dismissing the said application are just reasonable and well founded, as the petitioner-defendant failed to explain the abnormal delay in filing the petition to set aside, more so, the judgment under challenge is not ex parte judgment and the same was passed on merits. This court is convinced with the reasons assigned by the trial Court in dismissing the application and the findings given by the trial Court do not suffer from any illegality or irregularity warranting interference of this Court. Hence, the Civil Revision Petition is devoid of any merit and is liable to be dismissed. 5. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. 6. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.