COMMON ORDER :

As the issue involved in these civil revision petitions is one and the same, these matters are taken up together for disposal by this Common Order.

2. Heard Mr. M. Ramakanth, learned counsel appearing for the petitioner and Mr. S. Syamsunder Rao, learned counsel appearing for the respondents.

3. The petitioner herein is the 2nd plaintiff and the respondents herein are the defendants in the suit in O.S.No.342 of 2012, which was filed by the plaintiffs before the V Additional Senior Civil Judge, Guntur (for short “the trial Court”), for cancellation of the registered sale deed bearing document No.776 of 2004 executed by Palaprolu Subba Reddy in favour of the defendant and for declaration that the plaintiffs are the absolute owners of the plaint schedule property as it is their ancestral property and for recovery of possession of the same from the defendant. The same was decreed while defendant made as set ex parte.

Thereafter, the petitioner/defendant has preferred an application under Section 5 of limitation Act to condone the delay of 431 days in filing the petition to set aside the ex parte decree vide I.A.No.918 of 2013 and the same was allowed vide order dated 31.01.2019 on the ground that the petitioner has made out sufficient cause to condone the delay of 431 days in filing application to set aside ex parte decree passed in the suit. Thereafter, the petitioner has also preferred an application under Order 9 Rule 13 of CPC to set aside the ex parte decree vide I.A.No.24 of 2019 and the same was also allowed by order dated 17.04.2019 by the trial Court. Aggrieved by the same, the petitioner/2nd plaintiff has preferred the present Civil Revision Petitions.

4. During hearing, Sri Sai Narayana Rao, learned counsel representing on behalf of learned counsel for the petitioner submits that the petitioner/plaintiff filed the suit for declaration and for cancellation of registered sale deed dated 14.06.2004 and the same was decreed by the trial Court. He further submits that the court below ought to have seen that when the suit summons were sent for appearance of the respondent No.1, the same were returned with an endorsement that the said person left the house to her in-laws place after marriage, and also ought to have seen that the respondent No.1 in support of their delay condone petition have not lead any evidence to show that on the date of the disposal postal endorsement the respondent No.1 was actually in the USA and not in Guntur. He further submits that the Court below has failed to see that even for Article 123 of the Limitation Act to apply respondent No.1 to show that the date of her gaining knowledge of the suit and which she left for the USA or when she came back to India, she has not filed any evidence in the form of Passport entries with regard to her entry into India and exit from India and also she has not sufficiently proved her whereabouts at the time of suit summons and also about the address as shown in the sale deed.

5. On the other hand, learned counsel appearing for the respondents submits that the respondent No.1 has filed a petition attested true copies of the passport showing that she is resident of Siatle Avenue, Columbus, USA and the said fact was also not disputed before the court below. Learned counsel for the respondents has relied upon a decision of Hon’ble Supreme Court reported in Dr. Yashwantrao Bhaskarrao Deshmukh versus Raghunath Kisan Saindane1, wherein it was held that :

“The appellant filed an appeal before the High Court, which has been dismissed as barred by limitation. The High Court, while dismissing the application seeking condonation of delay in filing second appeal observed that sufficient cause for delay has not been established. The litigant, who is contesting the matter, cannot be negligent and it would be unfair to deprive the respondent, litigating for the last 17 years, of the valuable right that has accrued to him.”

In another case reported in G. Adilakshmi vs S.Anba