THE HON’BLE SRI JUSTICE V.SURI APPA RAO CIVIL REVISION PETITION No.6295 OF 2012 Dated 21st January, 2014 Between:
D.Venkataswamy .. Petitioner-Defendant and K.Rajaiah .. Respondent-Plaintiff THE HON’BLE SRI JUSTICE V. SURI APPA RAO CIVIL REVISION PETITION No.6295 OF 2012 ORDER:
This Civil Revision Petition under section 115 of Civil Procedure Code (in short ‘C.P.C.’) is filed by the petitioner-defendant challenging the order dated 31.10.2012 passed by the Senior Civil Judge, Manthani, in I.A.No.316 of 2012 in an un-numbered appeal.
Heard both sides and perused the impugned order.
Respondent-plaintiff filed O.S.No.24 of 2006 before the Junior Civil Judge’s Court, Manthani, against the revision petitioner- defendant seeking perpetual injunction restraining from interfering with his peaceful possession and enjoyment of the schedule property i.e. house bearing No.3-1 admeasuring 52.77 square yards at Nagepally Village of Kamapur Mandal. Said suit was decreed by the trial Court on 12.04.2012 in favour of the respondent herein. Aggrieved over the same, revision petitioner filed an appeal before the Senior Civil Judge, Manthani, Karimnagar District, along with I.A.No.316 of 2012 under section 5 of Limitation Act seeking to condone the delay of 96 days caused in filing the appeal, which was dismissed by the Appellate Court vide impugned order on the grounds that the revision petitioner failed to explain day-to-day delay in filing the appeal, he has not clearly disclosed the details of disease, names of medicines used and the name of the person who provided hand made medicines to him. Aggrieved by the same, present revision has been preferred.
Learned counsel for the revision petitioner submits that by the date of disposal of the suit itself, the petitioner was staying in Kondagattu Anjaneya Swamy Temple as per customs and further during his stay in the Temple at the advise of one priest the revision petitioner has also taken some treatment with certain hand made medicines for his ill-ness. Therefore, he could not file the appeal in time and there was a delay of 96 days in filing the same.
Per contra, the learned counsel for the respondent submits that the details of the disease suffered by the petitioner and name of the medicines used by him and other particulars are not mentioned in the impugned application and the petitioner has also failed to explain the day-to-day delay caused in filing the appeal. Therefore, the Appellate Court has rightly dismissed the impugned application and there are no grounds to interfere with the same.
Revision petitioner is the defendant in the suit filed by the respondent for perpetual injunction, which was decreed by the trial Court in favour of the respondent. As seen from the judgment of the trial Court, the revision petitioner did not chose to examine himself and has not filed any documentary evidence also. The delay in filing the appeal is only 96 days. In the affidavit it has been averred that the revision petitioner was advised to stay in the Temple for his ill-ness for some time and therefore he could not file the appeal in time. Further, since the medicines taken by the revision petitioner are hand made, it is not possible for him to furnish the details of the same as pointed out by the Appellate Court. Merely because, the revision petitioner has not disclosed the details of disease, medicines used by him and the person who treated him, petition filed by him cannot be thrown out entirely. The revision petitioner filed the appeal being aggrieved by the judgment of the trial Court granting perpetual injunction against him. Hence, it is just and reasonable to give one more opportunity to the revision petitioner to agitate his case before the Appellate Court.
Therefore, the impugned order is hereby set aside condoning the delay of 96 days caused in filing the appeal before the Appellate Court subject to payment of costs of Rs.1,000/- (Rupees One Thousand only) by the revision petitioner to the respondent within a period of one month from today. On complying with the above said condition by the revision petitioner, the Senior Civil Judge, Manthani, is directed to number the appeal and dispose of the same on merits in accordance with law.
Accordingly, the Civil Revision Petition is allowed. There shall be no order as to costs.
Miscellaneous petition pending in this revision, if any, shall stand closed.
V.SURI APPA RAO, J
Dated 21st January, 2014
SUR