IN THE HIGH COURT OF JUDICATURE AT HYDERABD FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH FRIDAY THE SEVENTH DAY OF NOVEMBER TWO THOUSAND AND FOURTEEN PRESENT HONOURABLE SRI JUSTICE S. RAVI KUMAR
CIVIL REVISION PETITION NO. 3060 OF 2014
Between:
Konduru Venkatamma … Petitioner V/s.
Maripalli Gowramma & Ors. … Respondents Counsel for Petitioner : Sri M. Karuna Sagar Counsel for Respondents : None appeared The court made the following : [order follows] HONOURABLE SRI JUSTICE S. RAVI KUMAR
CIVIL REVISION PETITION NO. 3060 OF 2014
O R D E R :
This Civil Revision Petition is against orders dated 19/06/2014 in CMA.No. 5 of 2013 on the file of Principal District Judge, Vizinagaram, whereunder the order and decree dated 23/07/2013 passed in I.A.No. 132 of 2012 in OS.No. 59 of 2007 on the file of Additional Junior Civil Judge, Vizinagaram, are confirmed.
2. Brief facts leading to this Revision are as follows:
Revision Petitioner herein and Respondents 2 and 3 are the plaintiffs in OS.No. 59 of 2007 on the file of Additional Junior Civil Judge, Vizianagaram. When the suit was coming up for trial, plaintiffs did not attend the court on 20/03/2012, on that trial court dismissed the suit for default and thereafter plaintiffs filed I.A.No. 132 of 2012 under Order-9, Rule-9 of CPC to set aside dismissal order and the trial court dismissed the said application on 23/07/2012. Aggrieved by the said orders, plaintiffs preferred CMA.No. 5 of 2013 to the District Court, Vizianagaram. The learned District Judge, Vizinagaram, dismissed CMA.No.5 of 2013 confirming the orders of trial court in I.A.No. 132 of 2012 in OS.No. 59 of 2007, dated 23/07/2012. Aggrieved by the orders of learned Principal District Judge, Vizianagaram one of the plaintiffs preferred the present revision showing the other plaintiffs as Respondents 2 and 3.
3. This court directed the counsel for the Revision Petitioner to take out personal notice to first respondent, who is the contesting party and defendant in the suit through registered post with acknowledgement due and to file proof of service. In pursuance of the orders of this court, petitioner’s counsel sent notice by registered post on 22/10/2014 and the counsel filed a memo on 05/11/2014 stating that Respondent No.1 received the notice and filed postal acknowledgement dated 27/10/2014. Inspite of service of notice, first respondent neither appeared in-person nor through any advocate.
4. Advocate for petitioner submitted that plaintiffs could not attend the court on 20/03/2012 due to family function in the house of one of their relatives and unfortunately advocate also could not attend the court on that day but the trial court without giving opportunity to the plaintiffs to prove their case dismissed the restoration application and the appellate court also confirmed it.
5. As seen from the impugned order, the main ground for dismissal of restoration application is that plaintiffs have not evinced any interest in prosecuting the suit from 2007 till 2012 and that made the trial court and appellate court to dismiss the restoration application and the appeal thereon.
6. Now the Advocate for petitioner submitted that plaintiffs will undertake to proceed with the trial and complete it as early as possible without seeking any adjournment and requested this court to give an opportunity to the plaintiffs.
7. As seen from the material papers, the suit is filed initially for permanent injunction and subsequently amended by adding the relief of mandatory injunction as per orders in I.A.No.84 of 2011 dated 30/09/2011. According to plaint averments, the defendant made unauthorised construction in the plaint schedule site and therefore mandatory injunction is sought for removal of that unauthorised construction besides the relief of perpetual injunction restraining the defendant from interfering with 9 feet vacant site to the east of plaintiffs foundation.
8. As rightly pointed out by Advocate for petitioner, valuable rights of plaintiffs are involved in the suit. As seen from the order of trial court dated 23/7/2012 the plaintiffs were absent for only one day i.e., 20/03/2012 and they offered explanation for their absence but the same is not accepted on the ground that court waited till 04:30 p.m. on 20/03/2012. No earlier instances of their absence were recorded in the orders of trial court. Therefore, considering the request of Advocate for Revision Petitioner, I feel that an opportunity should be given to the plaintiffs to prove their claim. In fact, the appellate court ought to have given this opportunity by imposing some costs and fixing some time, but the learned appellate Judge has not given that opportunity on the ground that plaintiffs did not evince any interest to commence the suit till 2012 though it is of the year 2007. It is not known whether the plaintiffs were only responsible for not commencing the trial from 2007 to 2012 or not. Now without looking into entire docket proceedings from 2007 to 2012 fixing fault on plaintiffs, in my view, is not at all correct, therefore, the appellate court committed error in not giving opportunity to the plaintiffs.
9. Considering the facts of the case and the reasons assigned by the plaintiffs for their absence on 20/03/2012, I am of the view that they should be given an opportunity and the Revision can be allowed.
10. Accordingly, the impugned order dated 19/06/2014 is set aside and the Revision is allowed subject to payment of costs of Rs.1000=00 [Rs. One thousand only] to the defendant within two weeks from the date of receipt of this order and also to proceed with trial and complete their evidence within three months thereafter. The trial court shall restore the suit after payment of costs to the defendant, and on such restoration, plaintiffs shall commence their evidence within fifteen days of restoration and complete their evidence within three months.
11. Subject to the above conditions, this Civil Revision Petition is allowed with costs.
12. As a sequel, miscellaneous petition if any, pending in this Civil Revision Petition shall stand closed.
JUSTICE S. RAVI KUMAR .
07/11/2014
I s L
HONOURABLE SRI JUSTICE S. RAVI KUMAR CIVIL REVISION PETITION NO. 3060 OF 2014 Circulation No.45 Date: 07/11/2014 Court Master : I s L Computer No. 43