THE HONOURABLE SRI JUSTICE NARSING RAO NANDIKONDA

ORDER:

This Civil Revision Petition is filed by the petitioner/appellant being aggrieved by the order passed in IA No.75 of 2017 in AS(SR) No.41 of 2017 on the file of the District Judge, Karimngar.

2. Heard Sri Bethi Venkateswarlu, learned counsel for the petitioner. None appeared for the respondents.

3. The brief facts of the case are that the petitioner herein filed interlocutory application under order 41 Rule 3-A(1) of CPC for condonation delay of 989 days in preferring Appeal against the Judgment and Decree, dated 19.03.2014 passed by the Senior Civil Judge, Siricilla in OS No.156 of 2013, however the trial Court dismissed the IA No.75 of 2017, vide order dated 28.07.2017 on the ground that no sufficient cause is shown by the petitioner herein to condone the said delay.

4. Being aggrieved by the dismissal order, dated 28.07.2017, the present Civil Revision Petition is filed contending that trial Court without considering the ill health of the petitioner and also that she was pursuing the remedy under Order 9 Rule 13 of CPC the said delay was caused in filing the appeal. It is further contended that it is always desirable to decide the litigation on merits and that the petitioner contended that the delay of 989 days is due to the ill health of the petitioner/appellant.

5. Learned counsel for the petitioner further contended that though she received the summons and engaged an advocate on her behalf and on behalf of the appellant No.2, thereafter she suffered from ill health and thereby she was bed ridden in hospital as in-patient and she has undergone surgery on 19.03.2014, i.e., the same day ex-parte decree was passed. The doctors advised her to take bed rest for one and the half years, as such, she do not had the knowledge about the stage of the case. Subsequently after knowing the same, she filed IA Nos.16 & 17 of 2015 for condonation of delay and to set aside the ex-parte decree, however the same was dismissed by the trial Court. The plaintiffs therein have also filed E.P.No.21 of 2014 and the same is pending for consideration.

6. Though the matter is posted today for hearing respondents counsel arguments, however none appeared for the respondents.

7. Having perused the affidavit and order passed by the trial Court, the point that arose for consideration before this Court is that.

a) “Whether the trial Court judge has committed any error in dismissing the application?

b) And whether the petitioner has made out any sufficient cause to seek condonation of delay in filing the appeal?”

Point No.1 & 2:

8. Admittedly the petitioner/appellant No.1 herein is also representing appellant No.2. The petitioner/appellant No.1 who is aged about 35 years and the appellant No.2 who is aged about 66 years and the suit which was filed by the plaintiff/respondent No.1 herein seeking declaration of title and recovery of possession against the defendants therein in respect of the suit schedule property and it is also noted that on 19.03.2014, the petitioner herein were set ex-parte in OS No.156 of 2013. The counsel for the petitioner has cited reasons for not appearing or not contesting the suit on medical grounds, that she has underwent surgery for “Incesional Hernioplasty with Mesh repair” on 19.03.2014 and she was an in-patient from 19.03.2014 till 25.03.2014 at People’s Hospital, Mustabad.

9. It is seen from the record that the petitioner was set ex-parte for non-filing of the written statement and the right to file a written statement was also forfeited, and it was further observed that the petitioner is aware of the suit proceedings, on the said ground the learned trial Court dismissed the application and further on the ground that the petitioner did not file any documentary evidence i.e., a medical report to show that she was really suffering from ill health and she was hospitalized. It is also further held that the appellant No.2 on record could have taken steps immediately, without any delay.