A Bala Chandra vs A B Bhargavi

Dr. V.R.K. Krupa Sagar, J

The second defendant before the learned trial Court filed this civil revision petition under Section 115 of C.P.C. impugning the order dated 15.11.2018 passed by the learned Senior Civil Judge, Gudur, SPSR Nellore District in I.A.No.463 of 2013 in O.S.No.5 of 2009.

The 1st respondent in this petition is plaintiff and the 2nd respondent in this petition is 1st defendant in the suit.

O.S.No.5 of 2009 was a suit for partition and separate possession and there was one plaintiff and two defendants. The 1st defendant is mother of the 2nd defendant. A preliminary decree was passed on 11.04.2012 granting 4/9th share to the 1st respondent/plaintiff therein. While final decree proceedings were initiated, the 2nd defendant had filed I.A.No.463 of 2013 under Section 5 of the Limitation Act, 1963 (for short, ‘the Act’) seeking to condone the delay of 339 days in filing a petition under Order IX Rule 13 of C.P.C. to set aside the preliminary decree, which was passed ex-parte. After due contest, the learned trial Court dismissed the said petition and that resulted in this revision moved by the 2nd defendant in the suit.

Before the trial Court, this revision petitioner filed a sworn affidavit in support of I.A.No.463 of 2013 wherein he stated that he received suit summons and along with his mother he made appearance in the Court and he also filed a written statement. Thereafter, his mother told him that she would pursue the suit and talk to the plaintiff and see that the suit be withdrawn. The petitioner believed his mother and kept quite and did not pursue the suit and all throughout was under the impression that the suit would be withdrawn by the plaintiff. He further stated that he received notices in the final decree proceedings and then enquired with his mother, who told him that the plaintiff did not agree for withdrawal of the suit. Thus, the petitioner concluded that his mother colluded with the plaintiff. It is with these facts he prayed the trial Court to set aside the ex-parte decree that was passed on 11.04.2012.

The 1st respondent/plaintiff filed a counter and resisted the petition. Learned trial Court having considered the petition and the counter and the arguments advanced on both sides, stated that non-pursuing the suit under the belief that the mother of the petitioner would pursue the matter was not a sufficient cause to condone the delay of 339 days and it observed that the petitioner has been very negligent in defending his case. It is with these reasons it dismissed the said petition.

In the present revision, the petitioner states that his mother colluded with the plaintiff and this fact ought to have been believed by the trial Court. For these reasons, he seeks to upset the impugned order.

Learned counsel for the respondents submits that Section 5 of the Act requires explanation of each day delay and on the available facts the learned trial Court reached to appropriate conclusions and therefore, the impugned order does not require any interference.

In the context of the facts available on record, the question that falls for consideration in this revision is:

Whether the impugned order suffers from illegality or material irregularity as the lower Court failed to consider the cause assigned as sufficient to condone delay?

A copy of the preliminary decree in O.S.No.5 of 2009 is available on record and the cause title of it would show that the mother and son, who are defendant Nos.1 and 2 in the suit, are shown to be residents of same village. By the own showing of the revision petitioner, he and his mother together made appearance before the trial Court and they also filed a written statement resisting the prayer of the plaintiff in seeking for partition of the suit schedule properties. On his own showing, this revision petitioner did not pursue the matter thereafter. The only cause he offered was that his mother undertook to pursue the suit and therefore, he did not regularly pursue the suit. In support of it, he was expected to file the affidavit of his own mother, which he failed to file. Be that as it may. As per the counter filed by the 1st respondent in I.A.No.463 of 2013 this revision petitioner received notices in final decree proceedings on 09.11.2012. The petition under Section 5 of the Act was filed by this revision petitioner on 16.04.2013. These facts are available on record and are not disputed by learned counsel for the revision petitioner. Thus, there was a time gap of nearly 5 months between the date of receipt of final decree notices and the date of presentation of petition under Section 5 of the Act. Even according to the affidavit, soon after receiving final decree notices, the petitioner conferred with his mother and came to know that the suit was decreed ex-parte. The collusion alleged against mother or plainitff was over with the decree that was passed. It is in these circumstances he ought to have explained the cause of delay of nearly 5 months between the date of final decree notices and filing of petition under Section 5 of the Act. The sworn affidavit of the petitioner filed before the trial Court is absolutely silent on this aspect. Thus no cause is shown for the delay. The entire endeavour of the petitioner is only to show as to why he did not pursue the suit. Why he participated why he did not participate in suit proceedings is not germane for consideration in the context of the facts available on record. Therefore, the conclusions reached by the trial Court are found to be correct since there is absolutely no fact offered seeking condonation of delay that was there on part of the revision petitioner. Therefore, this Court shall record that the impugned order does not suffer from any illegality or material irregularity. There is absolutely no merit in the civil revision petition. Therefore, it has to be dismissed at the stage of admission.

Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall stand closed.