IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA & THE STATE OF ANDHRA PRADESH THURSDAY, THE TWENTY FOURTH DAY OF JULY TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.1202 of 2013 BETWEEN Gadamsetty Punna Rao.
... PETITIONER AND Gadamsetty Katchamsetty and others.
...RESPONDENTS Counsel for the Petitioner: MR. T. RAVI KUMAR Counsel for the Respondents: MR. Y.V. RAVI PRASAD The Court made the following:
ORDER:
Heard both sides.
2. Petitioner is appellant in A.S.No.13 of 2008. The said appeal arises out of a suit, being O.S.No.828 of 2000 on the file of the I Additional Junior Civil Judge, Ongole, filed for partition of the plaint schedule properties, mesne profits and other reliefs. It appears that the appeal before the lower appellate Court was coming up for filing written arguments and as the petitioner sought time for written arguments, time was extended subject to payment of Rs.100/- to the Bar Association. It is stated that after the petitioner paid the costs, the counsel sought further time to file written arguments but the same was not considered by the lower appellate Court and appeal was dismissed in default on 18.02.2011. Petitioner, thereafter, had filed an application for setting aside the default order but the same was rejected with some objections on 11.07.2011 and the said application could not be resubmitted within the time fixed and there was a delay of 322 days in resubmitting the restoration application.
Petitioner, therefore, filed I.A.No.791 of 2012 seeking condonation of delay in representing the restoration petition. Under the impugned order dated 29.10.2012, the lower appellate Court rejected the said petition on finding that the petitioner is apparently not interested in prosecuting the appeal and as he himself is not diligent, the request for condonation of delay is not justified. The said order is questioned in the present revision petition.
3. Notice to respondents was ordered on 05.06.2014 and thereafter, the learned counsel for the respondents has been heard.
4. From the facts and circumstances, it is apparent that the petitioner has not been diligent in prosecuting the said appeal and has not cooperated with the lower appellate Court in disposal of the appeal. In the process, therefore, the appeal of 2008 has remained undisposed and undecided on merits. Since the said appeal arises out of a suit for partition, the interest of substantial justice requires that the appeal be heard and disposed of on merits after hearing the parties concerned. However, so far as lack of diligence on the part of the petitioner is concerned, the respondent can be compensated adequately by awarding costs.
Hence, the civil revision petition is allowed setting aside the impugned order and consequently, application for condonation of delay I.A.No.791 of 2012 as well as application for restoration of A.S.No.13 of 2008 shall stand allowed and the appeal shall stand restored to the file of the lower appellate Court for hearing and disposal, on merits, subject to the condition of the petitioner paying costs quantified at Rs.5,000/- (Rupees Five Thousand only) to the learned counsel for the respondents herein within a period of four (4) weeks from today. On compliance of the order as to costs, the Registry shall communicate the order of this Court to the lower appellate Court and thereafter, the lower appellate Court shall fix a date of hearing after notice to both parties and on the date so fixed, the matter shall be heard and thereafter, disposed of on merits. Learned counsel for both parties undertake that their counter parts shall cooperate with the lower appellate Court and shall not seek any further indulgence. The lower appellate Court shall ensure that the appeal is heard and disposed of on merits, preferably, before end of November 2014. As a sequel, miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J July 24, 2014 DSK