Point of law: Once court accepts explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisiional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court

JUDGMENT :

Civil Revision Petition No.94 of 2019 and Civil Miscellaneous Appeal No.7 of 2019 are directed against the common order dated 07.12.2018 in I.A.No.15 of 2016 and G.L.No.8 of 2016 in O.S.No.248 of 2007 on the file of the Court of the learned Additional Senior Civil Judge (FTC), Gudivada respectively.

2. I.A.No.15 of 2016 was filed under Section 5 of the Limitation Act to condone the delay of 993 days in filing petition G.L.No.8 of 2016 under Order-9, Rule-13 CPC to set aside the ex-parte decree. The 1st defendant is the revision petitioner as well as the appellant in the above matters.

3. Civil Revision Petition No.420 of 2019 and Civil Miscellaneous Appeal No.229 of 2019 are directed against the common order in I.A.No.2 of 2016 and un-numbered I.A. in O.S.No.248 of 2007 dated 07.12.2018 on the file of the same Court respectively. The 2nd defendant is the revision petitioner in I.A.No.2 of 2016 filed under Section 5 of the Limitation Act to condone the delay of 948 days in filing petition in unnumbered I.A. under Order-9, Rule-13 CPC to set aside the ex parte decree in the suit.

4. Since both these matters arise out of the proceedings relating to the same suit against common orders of the trial Court, since arguments are addressed in all these matters together, they are being disposed of by this common order.

5. The parties as arrayed in the suit shall be referred to hereinafter for convenience.

6. The 1st and 2nd respondents as the plaintiffs instituted the suit against the defendants 1 to 5 for the following reliefs:

“(a) Declare the registered sale deed dated 12.09.2006, Doc.No. 5377 /2006 of Sub Registry, Gannavaram, executed by D-3, D-4 and D-5 in favour of 1st defendant is null and void;

(b) Declare the registered sale deed dt. 12.09.2006, Doc.No.5378/2006 of Sub Registry, Gannavaram, executed by D1, D-3, D-4 and D-5 in favour of D-2t is null and void;

(c) to grant costs of the suit”

7. The dispute in the suit is in respect of two different extents of Ac.0-12 cents each described in plaint ‘B’ and ‘C’ schedules respectively in R.S.No.137/2 of Pedauvutupalli of Unguturu Mandal of Krishna District. Both these extents together are Ac.0-24 cents as described in plaint ‘A’ schedule.

8. The 2nd plaintiff is the daughter of the 1st plaintiff. The defendants 1,3,4 and 5 and the 1st plaintiff are the sons of Sri Kommaraju Raja Rao. The 2nd defendant is the son of the 3rd defendant. There is no dispute that the entire plaint ‘A’ schedule property belonged to Sri Kommaraju Raja Rao. He died on 12.05.1995.

9. The dispute is essentially with reference to claim set up by both the parties to plaint ‘B’ and ‘C’ schedule extents. The plaintiffs claim that Sri Raja Rao executed a Will dated 21.03.1994 bequeathing plaint ‘A’ schedule property in favour of the 1st plaintiff out of which he had gifted away plaint ‘B’ schedule extent of Ac.0-12 cents to the 2nd plaintiff under a registered gift deed dated 31.08.2006. Complaint of the plaintiffs is also that without manner of right, the defendants 3, 4 and 5 executed a sale deed in respect of 605 sq.yards out of plaint ‘B’ schedule property on 12.09.2006 in a fraudulent transaction in favour of the 2nd defendant and that the defendants 1 and 3 to 5 executed another sale deed dated 12.09.2006 in favour of the 2nd defendant in respect of the remaining extent of plaint ‘A’ schedule property shown in plaint ‘C’ schedule fraudulently.

10. The defendants 1 and 2 contested the suit initially filing their written statements mainly disputing the Will set up by the plaintiffs as a rank forgery and supporting the sale of extents referred in the plaint in favour of the 2nd defendant, being legal and valid.

11. When the suit was coming up for trial, it was dismissed for default, on 09.11.2011. It was later on restored as per orders in I.A.No.234 of 2011 dated 06.12.2012. Thereafter, the defendants 1 and 2 were set ex parte on the ground that they did not take part in the course of trial leading to passing an