THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO CIVIL REVISION PETITION No.3991 of 2011 Date: 16-07-2014 Between :- K.Ramappa.
… Petitioner.
And Narayanamma.
… Respondent.
Counsel for the petitioner s : Sri P.Narahari Babu Counsel for respondent : -NA-
This Court made the following :-
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO CIVIL REVISION PETITION No.3991 of 2011 ORDER:
This Revision is filed challenging the order dt.18-07- 2011 in I.A.No.894 of 2010 in O.S.No.262 of 1999 on the file of the Junior Civil Judge, Hindupur.
2. The petitioner is plaintiff in the above suit. The said suit was filed for declaration of title of petitioner in respect of plaint schedule property and for recovery of possession of the same. Written statement was filed by respondent and trial commenced. On 18-03-2004 the suit was dismissed for default. On 17-01- 2007 an application seeking condonation of delay of 1000 days in filing petition under Order IX Rule 9 CPC was filed by petitioner along with another application under Order IX Rule 9 CPC to restore the suit. The application under Section 5 of the Limitation Act was numbered on 24-08- 2010.
3. In the affidavit filed in support of this application, the petitioner stated that he is an agriculturist aged 76 years; that he engaged Sri Ramaratnam Sastry, Advocate at Hindupur; and that he was not doing well and was suffering from old age problems. He alleged that he had written a letter to his counsel for information regarding his case but the counsel did not inform him about the date of hearing of the case. On 18-03-2004 he alleged that the Court called him absent since his counsel was also absent and costs were not paid and dismissed the suit for default on the ground that there was no representation on that day. He further contended that 15 days prior thereto he was admitted in a Government Hospital at Hindupur and his advocate had informed him about dismissal of the case on 18-03-2004 itself. He alleged that his advocate was engaged in some other Court and could not attend on 18-03-2004 and therefore the Court had dismissed the suit for default. He further stated that due to old age problems he could not come to Court on that day and his counsel was informed about it.
4. Counter affidavit was filed by respondent opposing the condonation of delay alleging that the petitioner had absented himself for a number of adjournments without any reason; ultimately, the suit was adjourned to 18-03- 2004 on payment of costs; on that date also the petitioner or his counsel did not appear; therefore the petitioner was set exparte for non-payment of costs and the suit was dismissed. It was denied that the petitioner was not doing well or was suffering from old age problems or that the advocate for petitioner had not informed the trial date. It was alleged that the petitioner who was living in the nearby village at Hindupur wantonly failed to get ready for trial and filed the application with false allegations after a lapse of about 3 years. It was denied that the petitioner had been admitted in a Government Hospital 15 days prior to 18-03-2004. Respondent alleged that the conduct of petitioner indicates that he is not interested in knowing the stages of suit for all this period; and since the petitioner has exhibited negligence, the respondent contended that there is no sufficient cause for condonation of the inordinate delay of 1000 days and I.A.No.894 of 2010 be dismissed.
5. By order dt.18-07-2011, the Court below dismissed I.A.No.894 of 2010. It held that after a lapse of almost 4 years after dismissal of the suit, the present application has been filed for condonation of delay and since there is no Doctor’s certificate filed to establish that during this period the petitioner fell sick, it has to be presumed that he did not have any interest in the prosecution of the case and there was no sufficient reason to entertain this application. It also noted that several opportunities had been given to petitioner to adduce evidence but he failed to do so.
6. Challenging the same, this Revision is filed.
7. Heard Sri P.Narahari Babu, learned counsel for petitioner.
8. The learned counsel for petitioner contended that the petitioner is aged 74 years and due to old age ailments he could not contact his advocate leading to the dismissal of the suit. He also contended that the suit being one for declaration of title and for recovery of possession, a lenient view may be taken and the delay of 1000 days in filing the application under Order IX Rule 9 CPC, be condoned.
9. There is no dispute that petitioner had filed O.S.No.262 of 1999 against respondent for declaration of title and for recovery of possession of the plaint schedule property. He engaged Sri Ramaratnam Sastry, Advocate at Hindupur in the suit to prosecute the suit on his behalf. According to the trial Court, several opportunities had been given to him to adduce evidence but he did not appear before the Court. Even according to petitioner, the matter was adjourned on payment of costs to 18-03-2004 but the said costs were not paid and neither the petitioner nor his counsel was present on that day. In view of the fact that as there was no representation on behalf of petitioner, the suit was dismissed for default on that day.
10. The petitioner filed the application under Section 5 of the Limitation Act, 1963 to condone the delay of 1000 days in filing petition under Order IX Rule 9 of CPC on 17-01-2007. But neither he nor his counsel bothered to get it numbered till 24-08-2010. On that date it was numbered as I.A.No.849 of 2010. This also exhibits callousness on the part of petitioner in prosecuting the litigation.
11. It may be that the petitioner is aged 75 years. Since he is pleading that he was not doing well and was suffering from old age problems and that he had got admitted in Government Hospital in Hindupur 15 days prior to 18-03-2004, the burden is on him to establish his illness by producing the hospital record or a doctor certificate. He did not produce either. There is nothing on record to believe that petitioner was ill from 18-03-2004 till 17-01-2007 and that the said illness had prevented him from filing application under Section 5 of the Limitation Act, 1963 or under Order IX Rule 9 CPC to restore the suit. It is unfortunate that the petitioner is blaming his counsel for his own inaction in prosecuting the suit. Nothing prevented the petitioner from either writing a post card or talking to his counsel on telephone or sending a family member to the counsel’s office to ascertain the date of hearing of the suit during the intervening 1000 days.
12. In view of the gross negligence exhibited by petitioner in prosecuting the suit, I hold that the trial Court did not commit any error in dismissing I.A.No.894 of 2010 in O.S.No.262 of 1999.
13. Therefore, this Revision is dismissed. No costs.
14. Miscellaneous applications pending if any, in this Civil Revision Petition shall stand closed.
Date: 16-07-2014 JUSTICE M.S.RAMACHANDRA RAO vsv