HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI CIVIL REVISION PETITION Nos.1181 and 1182 of 2014

COMMON ORDER:

These two Civil Revision Petitions are being disposed of by this common Order since C.R.P. No.1181 of 2014 is filed by the petitioners/Plaintiffs aggrieved by the Order dated 4.2.2014 in I.A.No.912 of 2012 in I.A.No.1111 of 2001 in O.S.No.133 of 1996 and C.R.P. No.1182 of 2014 is filed by the petitioners/Plaintiffs aggrieved by the Order dated 4.2.2014, in I.A.No.913 of 2012 in I.A.No.1112 of 2001 in O.S.No.133 of 1996, passed by the I Additional Senior Civil Judge at Warangal.

2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the trial Court.

3. The brief facts of the case are that the petitioners who are the plaintiffs filed suit for partition of the suit schedule property against the respondents and the same was decreed by the trial Court on 3.4.2001 and the respondents did not prefer any appeal. Later Sri J.Jeevarathnam was appointed as an Advocate Commissioner to divide the suit A and B schedule properties into three equal shares and to allot one such share to the petitioners and he filed his report allotting B1 schedule property in favour of the petitioners. As the previous counsel for the petitioners did not contest the matter, the trial Court has dismissed the said I.As. for default on 19.1.2004. On that the petitioner No.2 engaged another Advocate viz., Sri M.Ranjith and when the petitioners tried to verify the proceedings, they did not find the original suit file, for which a memo was filed requesting to trace out the same and accordingly, it was traced out. The counsel for the petitioners due to over sight has again filed a similar petition to appoint an Advocate Commissioner to divide the suit schedule property by metes and bounds and to pass a final decree. The petitioners have found the Advocate Commissioner’s final report and I.A.Nos.1111 and 1112 of 2001 and came to know that the Commissioner has completed his entire work except in respect of the A schedule property and that since 19.1.2004 to July 2010 the petitioners did not contact their previous counsel, who also did not inform them and till July 2012 their new counsel went on tracing the file in the section. Hence, there was a delay of 2790 days in filing the petition to set aside the dismissal order dated 19.1.2004 in both the I.As. Hence the petition.

4. Respondent No.1 filed counter denying the averments made in the petition and also contended that the Advocate Commissioner filed his interim report on 17.6.2012 by stating that the petitioners are not cooperating and again a final report was filed on 5.9.2012 and that on the said report, the respondents filed the petition on 9.10.2002 and the matter has underwent several adjournments and finally on 19.1.2004 as both the parties were not present, I.A.Nos.1111 and 1112 of 2001 were dismissed and that the present petitions are filed on 2.8.2012 and that the reason stated by the petitioners is a cock and bull story and not supported by any evidence and that the Commissioner’s report cannot be acceptable as he did not measure the property with the help of licensed surveyor and that the petitioners approached the Court with unclean hands and that the petitioners have no bona fides to file the present application. Hence prayed to dismiss the petition.

5. After hearing both sides, the trial Court dismissed both the petitions. Aggrieved by the said Orders, the petitioners/plaintiffs preferred the present revisions.

6. Heard the learned counsel for the Revision Petitioners and the learned counsel for the respondents.

7. The learned counsel for the petitioners submitted that the learned trial Judge failed to appreciate that on contest, the preliminary decree was passed in the suit for partition and in the final decree proceedings, the Commissioner was also appointed and he filed his final report and that passing of final decree by accepting the Advocate Commissioner’s