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2023 DIGILAW 1337 (AP)

Varugu Madhumathi v. Kotalathuru Vemulaiah

2023-09-23

K.MANMADHA RAO

body2023
JUDGMENT 1. This Revision Petition, under Article 227 of the Constitution of India, is preferred against the order, dtd. 28/4/2016, in I.A.No.609 of 2013 in A.S.S.R (CFR) No.4786 of 2012 on the file of the Court of the III Additional District Judge, Tirupati, (in short 'the first appellate court") which has been filed under Order XLI, rule 3-A of CPC to condone the delay of 90 days in filing the Appeal. 2. Initially the petitioner herein has filed an Appeal, aggrieved by the Judgment and decree dtd. 20/3/2013 in O.S.No. 85 of 2006 on the file of the Court of Senior Civil Judge, Srikalahasti. Since the petitioner has been suffering from jaundice and taking country made treatment at various placed, she was unable to prefer appeal within time. Hence an application was filed to condone the delay of 90 days in preferring appeal. 3. The respondents filed counter before the first appellate court denying all material averments and vehemently contended that the reasons mentioned in the affidavit is created for the purpose of filing the application and the delay is not properly explained, so also there is absolutely no evidence to show that the petitioner was suffering with jaundice. Therefore the delay cannot be condoned. 4. The first appellate court dismissed the application, while holding that except stating that the petitioner was suffering with white jaundice and took treatment, did not substantiate the same with any evidence and the petitioner failed to prove his contentions. 5. Heard Mr. O.Udaya Kumar, learned counsel for the petitioner and Mr. T. Janardhan Rao, learned counsel for the respondents. 6. During hearing learned counsel for the petitioner would mainly contend that the first appellate court ought to have given an opportunity to the revision petition to contest the matter on merits or else, it leads to infraction of the vested rights besides violation of well settled legal principles. Further the first appellate court ought to have rejected the vested rights of the parties on mere technical flaws and to construe the meaning of sufficient cause as defined under Sec. 5 of Limitation Act, so as to advance the substantial justice to the parties. Therefore the first appellate passed the impugned order on mere surmises. Hence revision is liable to be allowed. 7. Therefore the first appellate passed the impugned order on mere surmises. Hence revision is liable to be allowed. 7. Whereas, learned counsel for the respondent reiterated the contentions urged before the court below and vehemently opposed to allow the application and mainly contended that the petitioner has not produced any valid certificate to show that she was taken treatment for jaundice. Therefore, the first appellate court rightly dismissed the application. 8. Perused the record. 9. Admittedly the petitioner has not produced any doctor certificate to show that she was suffering from jaundice and taken treatment in Ayurvedic. But the court below not given liberal as the petitioner slept over the matter at her own whims and fancies without any evidence, therefore taken a serious view on that aspect and dismissed the application. 10. Upon perusal of the entire material on record, there was delay of 90 days in filing the appeal on the ground of suffering jaundice and taken treatment by the petitioner in Ayurvedic. In support of her contention, no evidence is produced. Further the suit was filed for recovery of suit promissory note against the defendants and the said suit was dismissed on 20/3/2013 on merits. 11. However, this Court taken a lenient view as the petitioner was suffering with jaundice and taken treatment and as contended by the learned counsel for the petitioner that there are bonafide grounds to be urged before the first appellate court, though it is a promissory note suit and huge money is involved and that the petitioner is also having fair chances of success in the matter and pleaded to condone the delay by considering all these aspects. 12. Under the above said circumstances, this Court is inclined to allow the C.R.P on payment of costs of Rs.2,000.00, to be credited to the suit account, within two weeks from the date of receipt of a copy of this order. The impugned order of the first appellate court dtd. 28/4/2016 is hereby set aside. Further directing the first appellate court to admit the appeal and decide the same on merits within six (06) months from the date of receipt of a copy of this order, since the suit of the year 2006 and the petitioner preferred an appeal in the year 2012, which is oldest one. Both the parties are directed to co-operate the first appellate court for expeditious disposal of the appeal. Both the parties are directed to co-operate the first appellate court for expeditious disposal of the appeal. 13. With the above direction, the C.R.P is allowed. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall also stand closed.