THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY Civil Revision Petition No.1947 of 2014 Between:
Dated 08th August, 2014 Jaitwala Narsing Rao and others And Jaitwala Mallaiah and others …Petitioners …Respondents Counsel for the petitioners: Sri Y.Krishna Mohan Rao Counsel for respondent Nos.1 & 2: Sri M.Kishan Singh Counsel for respondent Nos.3 to 8: Sri Nazir Ahmed Khan The Court made the following:
ORDER:
This civil revision petition arises out of order, dated 28.04.2014, in I.A.No.109 of 2013 (old I.A.No.159 of 2012) in O.S.No.386 of 2007, on the file of the learned Additional District and Sessions Judge, Vikarabad, Ranga Reddy District.
I have heard the learned counsel for the parties and perused the record.
The petitioners filed the above-mentioned suit for specific performance of agreement of sale, dated 21.11.2005, initially on the file of the learned I Additional District Judge, Ranga Reddy District at L.B.Nagar. It appears, consequent upon constitution of Additional District Court at Vikarabad, the suit stood transferred and was dismissed for default on 26.07.2010.
The petitioners filed an application under Order IX Rule 9 CPC for restoration of the suit. They have also filed I.A.No.159 of 2012, which was re-numbered as I.A.No.109 of 2013, under Section 5 of the Limitation Act, 1963 for condonation of delay of 583 days in filing the application for restoration of the suit. The lower Court by order, dated 28.04.2014, dismissed the application.
A perusal of the order of the lower Court would show that the same was passed on merits though it was recorded that both the parties and their counsel were not present. The lower Court has dismissed the application for condonation of delay on the ground that the petitioner has not explained the reasons for day-to-day delay in filing the application to the satisfaction of the Court.
I have carefully perused the affidavit of the petitioners in support of I.A.No.159 of 2012. They have inter alia stated that on 16.06.2010, they along with their counsel appeared in the Court of the learned I Additional District Judge, Ranga Reddy District at L.B.Nagar to enable them to file chief affidavit of PW.1, that they were informed that on administrative grounds, suit proceedings were transferred to the Special District Court constituted for trial of offences under SC & ST Atrocities Act, Ranga Reddy District at L.B.Nagar, that immediately, they have verified the daily cause list of the said Court, but could not find their case and that on their enquiries, they came to know that the suit file was not received from the Court of the learned I Additional District Judge, Ranga Reddy District at L.B.Nagar and that they were asked by the section authorities of the said Court to meet them again. The petitioners further pleaded that from 16.06.2010 they have been pursuing with the office of the learned I Additional District Judge, Ranga Reddy District at L.B.Nagar and also Special District Court all these days and that recently on 23.02.2012, they were informed by the office of the Special District Court that the suit proceeding was transferred on administrative grounds to the file of the learned Additional District and Sessions Judge, Vikarabad in the year 2010 itself. That immediately on 25.02.2012, the petitioners and their counsel came to verify the proceedings in the said Court and found that the Court has taken up the case on 16.06.2010 itself and adjourned the same to 28.06.2010 and that on 28.06.2010, as the Presiding Officer was on leave, the case was adjourned to 26.07.2010 on which date it was dismissed for the alleged non-representation.
The petitioners specifically stated that they were not aware of the transfer of the suit proceeding and that though it was stated in the docket proceeding that the learned counsel for the petitioners was present on 16.06.2010, they have never engaged any counsel nor they were aware of the proceedings before the said Court.
Irrespective of the correctness or otherwise of the averments contained in the above-noted affidavit of the petitioners, on a reading of the said averments, no one can say that there was no satisfactory explanation for the delay. If the parties were not represented by the counsel at the hearing, the Court has two options: (1) the case could be dismissed for default without assigning reasons and (2) the case could be dismissed on merits based on the record. The lower Court appeared to have exercised latter option of dismissing the case on merits. It however failed to apply its mind to the facts and circumstances of the case and observed in a casual manner that the petitioners have not explained the day-to-day reason for the delay in filing the application. This approach of the lower Court in dismissing the application without proper consideration of the reasons given by the petitioners cannot be appreciated.
In ordinary course, this Court would have remanded I.A.No.109 of 2013 to the lower Court for re-consideration and passing of an order afresh. However, Sri M.Kishan Singh, learned counsel for respondent Nos.1 and 2 and Sri Nazir Ahmed Khan, learned counsel for respondent Nos.3 to 8, have fairly submitted that the delay may be condoned and the suit may be restored for disposal on merits.
In view of this gracious concession made by the learned counsel for the respondents, I.A.No.109 of 2013 is allowed. Consequently, the application filed by the petitioners under Order IX Rule 9 CPC also stands allowed and the suit stands restored. The lower Court is directed to dispose of the suit within a period of six months from the date of receipt of a copy of this order.
The civil revision petition is accordingly allowed.
As a sequel to disposal of the civil revision petition, C.R.P.M.P.No.2731 of 2014 shall stand dismissed as infructuous.
C.V.NAGARJUNA REDDY, J 08th August, 2014
VGB