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2022 DIGILAW 115 (AP)

Reddy Rama Rao Died v. Polavarapu Srinivasa Rao

2022-01-28

B.KRISHNA MOHAN

body2022
ORDER : 1. This Civil Revision Petition is filed against the order in Interlocutory Application No. 1611 of 2018 dated 10.04.2019 filed in unnumbered Appeal Suit..........of 2019 on the file of Principal District Judge, Visakhapatnam, dismissing the application for condonation of delay in presentation of appeal. The petitioners herein are the petitioners in I.A. for condonation and the appellants in the un-numbered appeal before the lower appellate court. The defendants are some of the defendants in the suit before the trial court. The respondent No. 1 in I.A. and the respondent No. 1 in the unnumbered appeal before the lower appellate court is the plaintiff in the suit before the trial court. The other respondents are the respondents before the court below in the above said proceedings. 2. Heard the learned counsel for the petitioners and the learned counsel for the respondents. 3. The respondent No. 1 initiated action in O.S. No. 1444 of 2008 on the file of the I Additional Senior Civil Judge, Visakhapatnam against the respondent Nos. 2 to 6 initially for specific performance of an agreement of sale dated 14.09.2006. During the pendency of the suit, the petitioners and respondent Nos. 7 and 8 have been impleaded as defendants in the suit. 4. However, on contest of the matter, the suit is decreed on merits by the trial court vide its judgment and decree dated 18.06.2018. Aggrieved by the same, the petitioners herein who are some of the defendants in the suit preferred an appeal before the lower appellate court with a delay of 36 days. But the same was dismissed by the lower appellate court vide its order dated 10.04.2019 on the ground that no sufficient cause is shown for the ground of illness of the parties. 5. Aggrieved by the same, the petitioners filed this revision. The counsel for the petitioners submits that there was only delay of 36 days and the same was explained bona fide on the ground of illness of some of the parties. Unless the delay is condoned, much hardship and prejudice would cause to the petitioners/appellants before the lower appellate court also as there will not be any decision on merits against the judgment and decree of the trial court. 6. Unless the delay is condoned, much hardship and prejudice would cause to the petitioners/appellants before the lower appellate court also as there will not be any decision on merits against the judgment and decree of the trial court. 6. On the other hand, the learned counsel for the respondent No. 1 submits that the petitioners are no way aggrieved against the judgment and decree of the trial court against which they intended to prefer an appeal before the lower appellate court with a delay of 36 days. As such, no prejudice would cause to them even though the said judgment and decree of the trial court allows to be made final. However, he further submits that it is at the stage of execution proceedings and the judgment and decree of the trial court dated 18.06.2018 is not yet complied with. 7. Having regard to the above said facts and circumstances, this court finds some force in the argument of the counsel for the petitioner for condonation of delay of 36 days only in presentation of the appeal as it appears to be a genuine reason for preferring the appeal with the above said delay and the lower appellate court ought to have considered the same favourably in favour of the petitioners/appellants and it should have decide the matter on merits instead of dismissing the application of condonation of delay. Without touching upon the merits of the appeal, this court allows this revision by setting aside the order of the lower appellate court dated 10.04.2019 passed in I.A. No. 1611 of 2014 in an unnumbered Appeal Suit..........of 2018. 8. The lower appellate court is directed to number the appeal and hear the matter on merits after giving an opportunity to both the parties and the same shall be disposed of as expeditiously as possible within a period of three (03) months from the date of receipt of this order. The stay granted by this court stands vacated. 9. Accordingly, the Civil Revision Petition is disposed of. There shall be no order as to costs. As a sequel, the miscellaneous applications, if any, pending shall stand closed.