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2023 Supreme(Online)(TEL) 17140
HIGH COURT FOR STATE OF TELANGANA
A.ABHISHEK REDDY, J
P.Venkatesh, – Appellant
Versus
P.Durgesh, – Respondent
CRP/43/2023
A court may condone the delay in filing an application to set aside a dismissal order if the applicant can show sufficient cause for the delay.
Headnote:
CIVIL PROCEDURE CODE - ORDER IX RULE 13 - EX PARTE DECREE - SETTING ASIDE - DELAY IN FILING APPLICATION - CONDONATION - SUFFICIENT CAUSE - ILLNESS - NO PROOF - DISMISSAL OF APPLICATION - JUSTIFIED
Fact of the Case:
The petitioner filed a suit for specific performance of an agreement of sale against the respondent. The suit was decreed ex parte on 10.08.2007. The petitioner filed an application under Order IX Rule 13 read with Section 151 C.P.C. to set aside the ex parte decree, which was dismissed on 01.05.2009. The petitioner then filed another application under Order IX Rule 9 read with Section 151 C.P.C. to set aside the order dated 01.05.2009 and restore the earlier application, which is still pending adjudication. The petitioner also filed an execution petition, and the respondent filed an application for stay of execution, which was dismissed for default on 31.03.2022. The petitioner then filed an application to condone the delay in filing an application to set aside the dismissal order, which was also dismissed. The petitioner then filed a civil revision petition challenging the dismissal of the application to condone the delay.
Finding of the Court:
The court found that the petitioner had not provided sufficient proof of illness to justify the delay in filing the application to set aside the dismissal order. The court also noted that the petitioner had been granted ample opportunities to prosecute his case, but had failed to do so.
Issues: Whether the petitioner had provided sufficient cause to condone the delay in filing the application to set aside the dismissal order.
Ratio Decidendi: The court held that the petitioner had not provided sufficient proof of illness to justify the delay in filing the application to set aside the dismissal order. The court also noted that the petitioner had been granted ample opportunities to prosecute his case, but had failed to do so.
Final Decision: The court dismissed the civil revision petition.
[ 3167 ]
IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD FRIDAY,THE SIXTH DAY OF JANUARY TWO THOUSAND AND TWENTY THREE PRESENT THE HONOURABLE SRI JUSTICE A.ABHISHEK REDDY CIVIL REVISION PETITION NO: 43 OF 2023 Petition Under section 115 of cpc to revise the order dated:20 l,lUzo2z passed in EA.No. 1'1 of 2021 in E.P.No.46 of 201S in E.A. No.18 of 2022, in O.S.No. tO9 of
2007 on the file of the Court of the Senior Civil Judge, Sangareddy District Between:
P.Venkatesh, S/o.Satyanarayana, Age.60 yrs, Occ. Business, R/o.H.no.23_S-
506, Lal Dawaza, Hyderabad.
...PETITIONER/JDR DEFENDANT AND P.Durgesh, S/o.Late.P.Asho.k Shanker, aged about 55 yrs, Occ. Business, R:/o. H. No. 5-4-4_ 2G_ ,o r Nry1 ei w Bhola(pu"r, Seiunderabad.
..,RESPONDENT/DHR PLAINTIFF lA NO: 1 OF 2023 Petition under section 151 cpc praying that in the circumstances stated in the affidavit filed in suppo( of the petition, the High court may be pleased pleased to grant stay of ail further proceedings in g.p.ruo. q6 ot )o$
in
0.s.No.109 of 2007 on the file of the court of the Honble Senior civil Judge Sangareddy, pending final disposal of the main Revision petition.
Counsel for the Petitioner: SRI G JAYENDRA BALAJI Counsel for the Respondents: -
The Court made the following: ORDER I THE FON'BLE SRI IUSTICE A.ABHISHEK II.EDDY CI VIL REVISION PETITION No. .13 of lCt23 Q&Djl{:
This Civil Revision Petition, under Section 11I; of Code of Civil Proct dttre, is filed by the petitior,er/judgment debtor/ defer ,dant challenging the order and decree dated 20.1.0.2022 p; ssed by the learned Senior Civil ludge , liangareddy, h in E.A.No.1S of 2022 in E.A.No.11 of 2021 in Il.P.No 46 of 2015 o O.S.No.109 2007.
It is th r case of the petitioner/judgment debtor'/defendant that the resp(,ndent/ decree holder/ plaintiff has file: the stit uide O.S.No.109 ( f 2007 against him for specif ic pe rforn rance of agreem()nt o sale and the said suit was decreetl ex parte on 10.08.2007. f hat jn E.P.No.46 of 2015 filed by the r,rspondent for execution of the judgment and decree dated 1(1.08.2t107, the petitioncr has file,1 E.A.No.11 of 2021. seeking stav o I r,xec ution of the proceeclir qs ir1 the said E.P. The saicl E.A was Jir;missed for default z,irle o rcler clated 31.03.2022. Therefore. the Petitioner has filed the pres )nt E.A i.e., E.A.No.18 of 2022 seekirr 3 to t:ondone the delay of 50 days in filing the petition to set aside the dismissal order dated 31.03.2022. The Court below uide the order dated 20.70.2022 has dismissed E.A.No.18 of 2022. Hence, the present Civil Revision Petition.
Heard the learned counsel for the petitioner and perused the record.
A perusal of the record discloses that the suit filed by the respondent against the petitioner for specific performance of agreement of sale was decreed ex parte on 10.08.2007. The petitioner has filed I.A.No.108 of 2009 under Order IX Rule 13 read with Section 151 C.P.C. seeking to set aside the said ex parte order dated 10.08.2007. However, the said I.A was dismissed on 01.05.2009. Therefore, the petitioner has filed I.A.No.1948 of 2018 under Order lX Rule 9 read with Section 151 C.P.C seeking to set aside the order dated 01.05.2009 and restore I.A.No.108 oI 2009 and the said I.A. is pending adjudication.
The record further discloses that even prior to the dismissal of E.A.No.11 of 2027, the petitioner \\ras granted ample opportunities. But, as tlrere was no representation on behalf of \
the petitior er, the said E.A was dismissed f,rr default on 31..03.2022. Hence, the petitioner has filed E.A.)Jo.1S of 2022 seeking to c rndone the delay of 60 days in iiling the petition, [disnrissed. N o order as to costs.] set aside the ex ltnrte order dated 31.03.2022. Exce pl stating that the petitionr r was suffering from old age ailments ancl was ill- health, no p'oof was filed in support of the same. Irurthermore, the judgmen t and decree dated 10.08.2007 has become final, as no orders are p rssecl in I.A.No.194B of 2018 till tlate. Ivloreover, th
