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2020 DIGILAW 544 (AP)

V. Ramanamma, Nellore v. Vommina Subbamma, Nellore Dist Others

2020-08-28

R.RAGHUNANDAN RAO

body2020
JUDGMENT R. Raghunandan Rao, J. - The petitioner herein filed O.S.NO.82 of 2007 in the Court of Senior Civil Judge, Gudur, SPSR Nellore District for partition of properties between her and the defendants therein. Issues were framed in the said suit on 11.08.2008 and the matter was coming for the evidence of plaintiff. On 27.7.2011 an adjournment was given to the petitioner/plaintiff to commence evidence after paying costs and the matter was posted to 03.08.2011. On that day, the trial Court had dismissed the suit for default as the petitioner/plaintiff was not present in the Court. Thereafter, applications were filed by the petitioner/plaintiff on 06.09.2012 under Order IX Rule 9 of C.P.C., for setting aside the exparte order dated 03.08.2011 and I.A.No.95 of 2014 for condonation of delay of 369 days in filing the application for restoration of the suit. 2. This application was dismissed by the trial Court on 29.08.2016 and aggrieved by the same the petitioner/plaintiff has filed the present civil revision petition. 3. Heard Sri V.Siva Prasad Reddy learned counsel for the petitioner and Sri Srinivasan S.Rajan, learned counsel for the respondent. 4. The case of the petitioner was that she was a widow who was depending upon the advocate clerk to give information about the postings in the case. She states in the affidavit filed in support of the application before the trial Court that the advocate clerk had misled her and gave her wrong dates every time and it was only on 23.7.2012 when petitioner and her advocate had came to Court to file affidavit in lieu of examination- in- chief that she came to know about the dismissal of the suit on 03.08.2011. 5. The petitioner contended that in view of the fact that she had been unable to attend the Court due to the wrong information being given to her by the advocate clerk and the wrong dates of hearing that she kept quiet and was unable to move the Court immediately for setting aside exparte order and it would be in the interest of justice to permit her to prosecute the case by condoning the delay and by setting aside the exparte order. 6. The learned trial Judge dismissed the application on two grounds. 6. The learned trial Judge dismissed the application on two grounds. Firstly, on the ground that the version of the petitioner that the clerk of the advocate had misled her was not credible because no details of the said advocate clerk who is supposed to have misled her had been given and no details of any action taken such an advocate clerk were also given. Secondly, the trial Judge held that even if the initial period between 03.08.2011 and 27.07.2012 is taken to have been explained, there was no explanation for the delay between 27.07.2012, which is the date of knowledge and 06.09.2012 which was the date of which the application to set aside the expate order and for condonation of delay were filed. 7. The learned trial Judge had also relied upon the Judgments of this Court and Apex Court being Smt.Emani Sundara Janaki vs Smt.K.Sri Lakshmi,2006 3 APLJ 100 (HC) Kommidi Mahender Reddy vs Kommidi Suryamma, (2007) 1 APLJ 262 (HC) and Lanka Venkateswarlu (D) vs State of A.P.,2011 1 UPLJ 242 (SC). 8. Sri V.Siva Prasad Reddy, learned counsel for the petitioner submitted that the right of the petitioner to initiate a fresh suit for partition would not be taken away and it would only lead to multiplicity of proceedings and further delay in the case if the application was dismissed and the petitioner was forced to initiate a fresh suit. He further submitted that if the plaintiff would be given an opportunity of making out her case, the entire suit itself could be disposed of expeditiously and the same would be better interest of justice. 9. At this stage, the question before this Court would be whether sufficient cause has been shown by the petitioner for condonation of delay. As rightly held by the learned trial Judge, which I am in agreement with, the inability of the petitioner to show why there was a further delay from 27.07.2012 to 06.09.2012 would show that sufficient cause has not been made out and the delay in this period has not been explained at all. 10. In the circumstances, I do not find any reason to interfere with the order of the trial Court and the Civil Revision Petition is dismissed. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.