IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH THURSDAY, THE TENTH OF JULY TWO THOUSAND AND FOURTEEN PRESENT THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO
C.R.P.No.5003 of 2012
Between :
C. Jgnaneswar, S/o.C. Chennakesavulu, Aged : 53, Hindu, R/o.D.No.27/2-7-1, Prashanti Nilayam, Kaladindi Vari Veedhi, Bheemavaram (V), W. Godavari (Dist.) …Petitioner/Defendant No.2 Vs.
B. Sreedevi, W/o.B. Sreenivasa Rao, Aged : 39 years, Hindu, R/o.D.No.4/85, Dondapadu, Sreenagar Colony, Sanivarapu Peta (Post), Eluru Rural Mandal, W. Godavari (Dist.) …Respondent/Plaintiff Counsel for the Petitioner/ Defendant No.2 : Sri J. Prabhakar Counsel for the Respondent/ Plaintiff : Sri S. Tulasi Das The Court made the following : [order follows] THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
C.R.P.No.5003 of 2012
ORDER:
This Revision is filed challenging the order dt.22.08.2012 on the file of the Principal Senior Civil Judge, Anantapur.
2. The petitioner herein is the defendant in the said suit. The respondent/plaintiff is his sister.
3. The respondent/plaintiff filed OS.No.140 of 2005 seeking partition and separate possession of her 1/6th share in the plaint schedule properties before the Principal Senior Civil Judge, Anantapur. Summons in this suit were served on petitioner but he did not engage any counsel in the suit and also did not file any written statement therein. His other family members who were impleaded in the suit also did not contest the suit by filing written statement. Therefore, they were set ex parte and on 30.06.2008, a preliminary decree was passed in the suit granting 1/6th share in the plaint schedule properties to plaintiff.
4. On 20.02.2009, the petitioner filed IA.No.161 of 2009 under Section 5 of the Limitation Act, 1963 to condone the delay of two hundred and eight (208) days in filing the petition under Order IX Rule 13 CPC and also another separate application under Order IX Rule 13 CPC.
5. In the said application he contended that he was residing in Bheemavaram town of West Godavari District, far away from Anantapur where the suit had been filed by respondent; that after he received the suit summons he contacted his father and brother who were defendant nos.1 and 3 therein and was assured by them that they would look after the proceedings by engaging an Advocate and that his presence is not required; that he had belief and faith in his father and brother but the latter did not inform him the time of filing of the written statement or trial; when he enquired from them about the same, they had assured him that nothing would happen; that only after he received notice in the final decree petition I.A.No.14 of 2009, he came to know about the preliminary decree; he was kept in dark regarding the suit proceedings by defendant nos.1 and 3; defendant nos.1 and 3 had colluded with plaintiff, and since he had a good case, the delay in filing the petition under Order IX Rule 13 CPC be condoned and the application to set aside the ex parte decree be allowed.
6. A counter-affidavit was filed by respondent denying the averments in the affidavit filed in IA.No.161 of 2009 by petitioner pointing out that petitioner was a Post-Graduate in M.Sc. and a research scholar who had done Ph.D. and was working as a aqua consultant; he is not a layman but is well-versed in worldly affairs including court affairs; it was for him to engage an Advocate and contest the suit if he chose to do so and any assurance by defendant nos.1 and 3 could only be construed as an undertaking by them to engage an Advocate on their behalf and not on his behalf; with an ulterior motive, petitioner wantonly remained ex parte and only after passing of a preliminary decree and after receiving notice in final decree proceedings he came forward to file the present application; petitioner was visiting the plaint schedule property every month and collecting rents from tenants and had enjoyed the same without giving any share to plaintiff; the endeavour of petitioner appears to be to drag on the suit as long as possible in order to eat away the rents from tenants and enrich himself and this cannot be allowed. He contended that she has been residing at Yeluru, West Godavari District which is far away from Anantapur; it is not open to petitioner to plead his residence in West Godavari District as an excuse for not being able to contest the suit; no sufficient cause has been shown for condonation of the abnormal delay of two hundred and eight (208) days; and the said application be rejected.
7. By order dt.22.08.2012, the trial court rejected IA.No.161 of 2009 holding that petitioner being highly educated ought to have engaged a counsel and contested the suit and he cannot throw the blame on his father or brother, particularly when he failed to attend before the court even after receiving the summons; and that when the respondent, who is a resident of Eluru, West Godavari District which is far away from Anantapur could attend at Anantapur and prosecute the suit, the petitioner being a highly educated male person cannot take such a plea.
8. Challenging the same, this Revision is filed.
9. The counsel for petitioner contended that the Court below erred in dismissing the application for condonation of delay; that petitioner had trusted his father and brother, who were defendant nos.1 and 3 in the suit to protect his interest by engaging a counsel and contest the suit, but the latter colluded with respondent, remained ex parte and allowed the ex parte preliminary decree to be passed on 30.06.2008; that even if the court is of the opinion that there is some lapse on the part of petitioner, the court can take a liberal view and condone the delay by imposing some costs so that the respondent may be compensated.
10. On the other hand, the counsel for respondent contended that the explanation given by petitioner for not participating in the suit cannot be accepted; that petitioner is highly educated and a man well-versed in worldly affairs, therefore the story of petitioner that he implicitly trusted his father and brother to protect his interests cannot be believed. He contended that petitioner should have engaged a counsel to file a written statement and contested the suit and although the suit was pending from 2005 to 2009, not once did he appear in the court; that the explanation given by petitioner is not bona fide and is not liable to be accepted; and therefore, prayed that the Revision be dismissed.
11. I have noted the submissions of both sides.
12. There is no dispute that petitioner is the 2nd defendant in the suit filed by respondent for partition of the properties of her family and that petitioner’s father and brother were also impleaded as defendant nos.1 and 3 in the said suit. There is no dispute that the summons in the suit had been served on petitioner. Admittedly, the petitioner did not engage any Advocate or file a written statement in the suit. The petitioner’s case is that he trusted his brother and father, who were defendant nos.1 and 3 in the suit, and they had assured him that they would look after the proceedings by engaging an Advocate and his presence is not necessary. It is not petitioner’s case that he had given any Vakalat to defendant nos.1 and 3 to engage an Advocate. The petitioner being highly educated and worldly wise ought to have kept abreast of the events in the suit at Anantapur, at least by going there once to enquire as to what was happening there. From the date of filing of the summons till the preliminary decree was passed on 30.06.2008 there is nothing to show what the petitioner did to find out about the proceedings in the suit. The conduct of petitioner does not appear to be bona fide and it appears that he is conveniently blaming his father and brother for not protecting his interests in the suit.
13. It is settled law that while considering applications for condonation of delay, the court should primarily look into the sufficiency of the case for condoning the delay and the period of delay is not very material, and if the court feels that the reason is bona fide, it can condone the delay even by awarding costs to the opposite party, if need be.
14. Admittedly, the respondent is also a resident of Eluru, near Bheemavaram, West Godavari District which is far away from Anantapur where the suit is pending. If she could attend and prosecute the proceedings at Anantapur, the petitioner being a male person, who is highly educated also could have done so.
15. I am satisfied that the conduct of petitioner in the present case in not bothering about the proceedings in Anantapur for almost four years’ duration when the suit is pending indicates callousness on his part. In my opinion, sufficient cause has not been shown for condoning the delay of two hundred and eight (208) days in filing the application under Order IX Rule 13 CPC.
16. I do not find any error in the order passed by the court below. The Revision is accordingly dismissed at the stage of admission. No costs.
17. Miscellaneous applications, pending if any, in this Revision, shall stand closed.
JUSTICE M.S. RAMACHANDRA RAO Date : 10-07-2014 Ndr/*