THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO CIVIL REVISION PETITION No.3654 of 2012 Date: 09-07-2014 Between :-
1. Kadapa Chennakesva and others.
… Petitioners.
And
1. Kadapa Ramanjaneyulu (Died) and others.
… Respondents.
Counsel for the petitioner s : Sri J.Janakirami Reddy Counsel for respondents : Sri Vijaya Bhaskar Moola This Court made the following :-
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO CIVIL REVISION PETITION No.3654 of 2012 ORDER:
This Revision is filed under Section 115 of C.P.C.
challenging the order dt.27-04-2012 in I.A.No.93 of 2011 in CF No.4232/dt.04-07-2011 in A.S.No.Nil of 2011 of the District Judge, Anantapur.
2. The petitioners had filed O.S.No.25 of 2000 on the file of the Senior Civil Judge, Gooty for partition of the plaint schedule properties against respondent Nos.1 and
2. The said suit was dismissed on 04-07-2007. Copy application for certified copy of judgment was filed on 23- 08-2007 after expiry of the time for filing the appeal on 03- 08-2007. The appeal itself was filed in June, 2011 along with I.A.No.93 of 2011 seeking condonation of delay of 1429 days in filing the appeal.
3. In the affidavit filed in support of I.A.No.93 of 2011, the petitioners stated that after obtaining certified copies of the judgment and decree of the trial Court, the 2nd petitioner engaged an advocate by name Sri G.Ramanjaneyulu, practicing advocate at Gooty to file an appeal before the Principal District Judge at Anantapur and had handed over the Court file along with fee; that the said Advocate accepted the case and informed that he would intimate the stage of the case at the appellate Court to the petitioners; but he did not file the appeal on the ground that the entire case bundle pertaining to the suit which had been handed over to him was misplaced. It was further contended that the case bundle of the suit was traced out recently and that the said Advocate returned the bundle to the petitioners for engaging another Advocate for filing the appeal. It is also stated that the said Advocate Sri G.Ramanjaneyulu, while handing over the bundle, gave a sworn affidavit stating these facts and prayed that the delay in filing the appeal be condoned.
4. Counter affidavit is filed by 3rd respondent denying the above averments contending that the delay of 1429 days is abnormal and sufficient and just cause for condonation of delay is not shown by petitioners. It is also alleged that the I.A. was filed only to harass the respondents and is a misuse and abuse of process of law.
5. By order dt.27-04-2012, the lower appellate Court dismissed I.A.No.93 of 2011. It rejected the plea of petitioners that they cannot be penalized on account of negligence of their counsel in not taking steps to file the appeal. It held that suit O.S.No.25 of 2000 was dismissed on 04-07-2007 and the appeal against the said judgment was to be filed on or before 03-08-2007 but applications for certified copies of judgment and decree were filed on 23-08-2007 more than 23 days after the time for filing the appeal had expired. It observed that the petitioners have not filed the vakalat signed by them while entrusting the bundle to their counsel for filing the appeal in the year 2007 and therefore the plea of tracing the bundle recently, is not bonafide. It held that the petitioners had been negligent in waiting for 3 years for receiving the hearing date of the appeal and that it is highly doubtful that the petitioners ever intended to approach any advocate prior to 23-08-2007. It therefore held that sufficient cause has not been shown for condonation of the abnormal period of delay of 1429 days in filing the appeal.
6. Challenging the same, this Revision is filed.
7. The learned counsel for petitioners contends that their counsel in the District Court, having received the fee and all necessary papers, neglected to file the appeal and that he had informed them that the case bundle was misplaced and that was why he could not have filed the appeal in time. He further contended that the said Advocate has given an affidavit dt.21-06-2011 narrating these facts and therefore the petitioners cannot be allowed to suffer for his negligence.
8. The learned counsel for respondents, on the other hand, contended that the order of the trial Court is correct and since the petitioners have been negligent in taking steps to file the appeal, valuable rights have accrued to the respondents which cannot be now disturbed.
9. I have noted the submissions of both sides.
10. According to the averments in I.A.No.93 of 2011, the petitioners had approached Sri G.Ramanjaneyulu, Advocate at Gooty for the purpose of filing appeal and that the said Advocate having received the fee and case bundle, did not file the appeal on the ground that the case bundle was misplaced. It is further contended that the said Advocate traced out the case bundle in June, 2011 and returned it to the 2nd petitioner for the purpose of engaging another Advocate. It is further stated that the said Advocate Sri G.Ramanjanyulu while handing over the bundle had given a sworn affidavit narrating the above facts and the same was filed along with I.A.No.93 of 2011.
11. But the affidavit filed along with I.A.No.93 of 2011 is not the affidavit of Sri G.Ramanjaneyulu, but the affidavit of one Sri G.Ranganayakulu, Advocate at Gooty. It is not stated by the petitioners as to how the said Advocate Sri G.Ranganayakulu came to handle the records in the appeal when they entrusted the case bundle to Sri G.Ramanjaneyulu. Although the learned counsel for petitioners states that the name of Sri G.Ranganayakulu is wrongly printed in the place of Sri G.Ramanjaneyulu, I am not inclined to accept the said plea because there is no affidavit of Sri G.Ramanjaneyulu filed. Admittedly, the suit O.S.No.25 of 2000 filed by petitioners had been dismissed on 04-07-2007 and they were to file appeal against the said judgment on or before 03-08-2007. Instead they filed the appeal in June, 2011 with a delay of 1429 days. The petitioners should have enquired with the Advocate to whom they have handed over the papers for filing the appeal as to whether such appeal was filed or not. The affidavit filed by petitioners in the lower appellate Court is totally silent as to why they have not bothered to enquire about the status of the appeal till 2011. It is not proper for the petitioners to throw blame on the Advocate when they themselves have shown negligence in making enquiry as to the status of the appeal. I am satisfied that sufficient cause has not been shown by petitioners for filing the appeal with abnormal delay of 1429 days.
12. I therefore do not find any error in the order passed by the Court below. The Civil Revision Petition is accordingly dismissed. In the circumstances without costs.
13. Miscellaneous applications pending if any, in this Civil Revision Petition shall stand closed.
JUSTICE M.S.RAMACHANDRA RAO Date: 09-07-2014 vsv