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Andhra High Court · body

2021 DIGILAW 693 (AP)

P. Alak Gajapthi Raju v. Ambedkar Housing Estates

2021-10-27

D.RAMESH

body2021
ORDER : The Petitioner is the 2nd defendant in the suit. He filed the present revision aggrieved by the order dated 14.02.2020 passed in I.A.No.147 of 2019 in O.S.No.23 of 2009 on the file of the VI Additional District Judge, Visakhapatnam. The petitioner herein filed I.A. under Section 5 of Limitation Act for condonation of delay of 2460 days in filing petition to set aside the exparte decree dated 14.6.2012. 2. The plaintiff filed the suit against defendants 1 and 2 for specific performance of agreement of sale. As per the averments of the plaint, the suit schedule property belongs to the 2nd defendant and the 1st defendant has represented that he purchased the property from the 2nd defendant and offered to sell the same to the plaintiff and he has entered into an agreement of sale dated 11.8.2007 in respect of the A schedule property. As far as B schedule property is concerned he has entered into an oral agreement. After elaborate hearing, the suit was decreed on 14.6.2012. Subsequent to the decree, the plaintiff filed I.A.No.312/2011 in the said O.S. to execute and register the sale deed in pursuance to the agreement of sale dated 11.8.2007 and accordingly, the Court passed a decretal order on 25.7.2011 allowing A schedule property for depositing the amount and for registration by granting two months time. Accordingly, the plaintiff filed E.P.No.4 of 2012 for execution of the sale deed with regard to A schedule property. The Court executed the sale deed in favour of the plaintiff on 20.01.2014. Subsequently, the plaintiff filed I.A.No.379/2016 for granting permission to deposit the sale consideration with regard to B schedule property and they have also submitted their readiness to deposit the sale consideration with regard to B schedule property. In the said I.A., the Court granted time for filing counter till April 2017. As no counter is filed, on 19.4.2017, the Court granted permission to plaintiff to deposit the sale consideration for B schedule property. The same was deposited. 3. While things stood thus, the petitioner/2nd defendant filed the present I.A. for condonation of delay of 2460 days. In the said I.A., the Court granted time for filing counter till April 2017. As no counter is filed, on 19.4.2017, the Court granted permission to plaintiff to deposit the sale consideration for B schedule property. The same was deposited. 3. While things stood thus, the petitioner/2nd defendant filed the present I.A. for condonation of delay of 2460 days. The very contention of the petitioner is that the affidavit filed along with the I.A. is after institution of the suit and the petitioner has informed the 1st defendant and asked him to take care of the entire litigation and in view of the various occupations, the petitioner was moving in and out of India and he entrusted the entire litigation to the 1st respondent on behalf of the petitioner also. In the written statement sent by the 1st defendant, it is clearly stated that the 1st defendant has never offered to sell the B schedule property to the plaintiff either directly or indirectly and clearly denied the oral agreement and accordingly, the 1st defendant has promised to the 2nd defendant that he will inform the stage of the litigation whenever the presence of the petitioner is required. But after coming to know about the filing of the E.P.No.29/2018 when the petitioner tried to contact the 1st defendant he has completely avoided. In view of the said circumstances after obtaining the certified copy of the judgment and decree dated 14.6.2012 and on perusal of the same it revealed that witness of the plaintiff were not even cross-examined on behalf of the defendants. As witnesses were not cross-examined on behalf of the defendants and as there was no evidence from their side before the Court, the present application is filed. As the 1st defendant was not informed about the proceedings of the suit, he was totally kept under dark. 4. After notice, the 1st respondent/plaintiff filed counter denying all the allegations made in the petition and in fact they have denied about the knowledge of the judgment in the above suit very recently is a deliberate lie. In fact, the plaintiff/respondent has filed E.P.No.4/2012 for registration of sale deed in respect of the A schedule property and the notice to the petitioner/judgment debtor was personally served on 19.3.2012 and after that the suit was decreed on merits on 14.6.2012. In fact, the plaintiff/respondent has filed E.P.No.4/2012 for registration of sale deed in respect of the A schedule property and the notice to the petitioner/judgment debtor was personally served on 19.3.2012 and after that the suit was decreed on merits on 14.6.2012. Therefore, the judgment debtor no.2 was aware of the decree since the date of decree. Not only that even after filing I.A.No.379/2016 to permit the respondent/plaintiff to deposit the amount in the Court and that application also served on the judgment debtor. In fact the defendants have engaged an Advocate through K.V.R.M and B.V.R.M. But they have not filed any counters in the said application. In view of the said circumstances, they cannot deny about the knowledge of the decree at a belated stage. The delay was not properly explained in the affidavit filed along with the I.A. except stating that the 1st defendant did not inform about the proceedings/stage of the litigation is not a reasonable and justifiable cause to condone the delay. As contended by the respondent/plaintiff, the E.P.No.4/2012 in respect of the schedule A property was served personally by the plaintiff and also the subsequent I.A.No.379/2016 to permit him to deposit the amount with regard to B schedule property was personally served on the defendants were not denied anywhere. It is not out of place to mention that after notice both the defendants have engaged the Advocate and filed their Vakalats. Hence, now they are not entitled to plead no knowledge of the decree dated 14.6.2012. 5. Learned Senior Counsel Sri M.Nageswararao, appearing on behalf of the petitioner has vehemently argued that the 1st defendant has colluded with the plaintiff and he has not informed the stage of the suit to the petitioner and no notices were served on the petitioner and the petitioner has not engaged any Advocate. He further submitted that the petitioner has signed only the written statement. After that he has not signed on any other paper with regard to the suit. No notices were served on the petitioner and to support his contention, he filed additional material papers. The docket proceedings of I.A.No.379/2016 shows that the notice of R2 and R4 not served and returned for want of correct door number. As per the endorsement shows that on number of occasions, the matter has been adjourned for service of notice and for correct address. The docket proceedings of I.A.No.379/2016 shows that the notice of R2 and R4 not served and returned for want of correct door number. As per the endorsement shows that on number of occasions, the matter has been adjourned for service of notice and for correct address. In view of the same, no notices were served on the petitioner. 6. Learned Counsel appearing on behalf of the respondent has contended that the plaintiff has entered an agreement with defendant no.1 and accordingly, he has filed a suit for specific performance and the same was decreed after contest. As there was no time fixed in the decree, the plaintiff has deposited an amount of rupees fifty four lakhs and filed E.P.No.4/2012. Accordingly, the A schedule property was registered in favour of the plaintiff and subsequently, he also filed I.A.No.379/2016 for deposit of remaining amount of Rs.31,63,896/-for B schedule property. It is not in dispute that after notice, they have engaged a separate counsel for both the defendants. They have not chosen to file any counter. After elaborate delay only to procrastinate the litigation and with an after thought the present application is filed. Even as per the contents of the affidavit filed for condonation of delay there are no proper reasons mentioned in the delay except stating that the 1st defendant has not informed the stage of the suit. But he has not stated anything about the engagement of an advocate in I.A.No.379/2016 and there is no proper explanation with regard to the knowledge of the decree dated 14.6.2012. Even there was no specific contention when they have got the knowledge about the said decree. Vaguely by stating that after obtaining the certified copy of the judgment and on perusal of the same the witnesses of the plaintiff were not cross-examined. 7. In view of the above pleadings, the petitioner has failed to explain proper reasons for condonation of delay of 2460 days in filing set aside exparte decree petition. Apart from that the respondents further contended that the suit is not an exparte decree, the same was decreed on merits after contest. Hence only to delay the I.A. filed by the petitioner, the present application is filed and hence the same is not maintainable. Considering the same, the Court below rightly dismissed the application. Hence requested to dismiss the revision also. 8. Hence only to delay the I.A. filed by the petitioner, the present application is filed and hence the same is not maintainable. Considering the same, the Court below rightly dismissed the application. Hence requested to dismiss the revision also. 8. On perusal of the record and the affidavit filed in support of the application, they have not mentioned any valid reasons for condonation of delay of 2460 days. Even the affidavit is silent about the reasons and not filed any supporting documents along with the I.A. to condone the same. In view of the above, the Court below has rightly dismissed the petition. There are no reasons to interfere with the order of the Court below. 9. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. As a sequel thereto, the miscellaneous petitions, if any, pending in this Petition shall stand closed.