THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO CIVIL REVISION PETITION No.2635 of 2014 Date: 05-09-2014 Between :-
Smt.Bontha Krishna Latha.
… Petitioner.
And
1. Kadiri Ravindra Natha Reddy and others.
… Respondents.
Counsel for the petitioner : Sri K.Srinivas Counsel for respondent-1 : Sri C.B.Rammohan Reddy.
Counsel for respondents-2 to23 : -NA-
This Court made the following:-
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO CIVIL REVISION PETITION No.2635 of 2014 ORDER:
This Revision is filed challenging the order dt.14-07- 2014 in I.A.No.746 of 2014 in O.S.No.714 of 2001 of the Principal Junior Civil Judge, Anantapuram.
2. Heard the learned counsel for petitioner and Sri C.B.Rammohan Reddy, learned counsel for 1st respondent.
3. The petitioner herein is 3rd defendant in the above suit. The said suit was filed by 1st respondent for specific performance of an agreement of sale allegedly executed in his favour by the deceased 1st defendant, who is husband of 4th respondent and father of respondent Nos.5 to 12. The petitioner is a purchaser from the 1st defendant. The petitioner was served with summons in the suit. She engaged an Advocate but did not file any written statement. So, she was set exparte on 24-01- 2012. She filed I.A.No.746 of 2014 on 24-06-2014 under Order IX Rule 9 CPC to set aside the said order.
4. In the affidavit filed in support of the said application, the petitioner claimed to be a bona fide purchaser of extent Ac.5.00 cents of land under five separate registered sale deeds from the deceased 1st defendant and contended that she did not have notice of the suit agreement and she is a bona fide purchaser. She further stated that she was set exparte in the suit on 24-01-2002 and since she did not have proper guidance to approach the Court, she is filing the present application to set aside the order dt.24-01-2002 passed by the Court setting her exparte.
5. This application was opposed by 1st respondent contending that the petitioner has slept over for a period of 12 years and there are no grounds to set aside the said order and permit her now to contest the suit. He also stated that he filed C.R.P.No.1460 of 2011 before this Court seeking early disposal of I.A.No.2281 of 2008 and this Court allowed the C.R.P. on 25-04-2011 and directed the trial Court to pass appropriate order within four weeks. He stated that he has already filed an affidavit in lieu of chief-examination and marked Exs.A-1 to A-17 and the case is now posted for cross-examination of P.W.1 and at this stage, this application is filed to drag on the suit.
6. By order dt.14-07-2014, the Court below dismissed the said application. It held that that the only reason given by petitioner for non-appearance and failure to file written statement is that she has no proper guidance to pursue the matter and that her vendor, the 1st defendant, informed her at the time of summons that he would look after the suit proceedings. It held that the silence of the petitioner for the last 12 years from 24-01-
2002 is not bonafide and that in spite of having knowledge about the suit, she intentionally remained silent and did not move an application to set aside the order dt.24-01- 2002 immediately.
7. Challenging the same, this Revision is filed.
8. The learned counsel for petitioner stated that the suit itself was dismissed in between for non-prosecution on 27-08-2007 and it was restored on 06-09-2012 and the petitioner cannot be punished for not moving the Court immediately after passing order dt.24-01-2002. He further contended that the petitioner has prepared her written statement and is willing to file it immediately if the order dt.24-01-2002 is set aside. The petitioner has placed before this Court the order dt.06-09-2012 in I.A.No.2281 of 2007 in the suit. The said order indicates that on 27-08- 2007 the suit was dismissed for non-prosecution on the ground that the plaintiff was not present. The plaintiff had immediately filed I.A.No.2281 of 2007 under Order IX Rule 9 of CPC to restore the suit, but the Court could decide that application only on 06-09-2012.
9. The above facts indicate that 1st respondent was in no way responsible for the delay in disposal of I.A.No.2281 of 2007 and the said application was decided only after he approached this Court in C.R.P.No.1460 of 2011 and this Court allowed it on 25-04-2011 directing the trial Court to decide the said I.A. within four weeks.
10. Be that as it may, the petitioner has not pleaded in the affidavit filed in support of I.A.No.746 of 2014 that the suit was dismissed in 2007 and was restored in2012 and for the first time this plea is being raised in this Revision. In my opinion, the petitioner cannot take advantage of the delay in disposal of the order in I.A.No.2281 of 2007 filed under Order IX Rule 9 of CPC filed by 1st respondent since she was set exparte on 24-01-2002. She should have approached the Court within a reasonable time to have the said order set aside but she has slept over for a period of 12 years. It is difficult to accept the plea of the petitioner that she did not got proper guidance and this caused the delay.
11. In this view of the matter, I do not find any error in the order passed by the Court below in refusing to set aside the order dt.24-01-2002. I do not see any merit in the Revision and the same is accordingly dismissed. However, the Court below shall permit the petitioner to defend the suit by permitting her to cross-examine the witnesses to be examined by 1st respondent or the other defendants. No costs.
12. Miscellaneous applications pending if any, in this Civil Revision Petition shall stand closed.
JUSTICE M.S.RAMACHANDRA RAO
Date: 05-09-2014
vsv