THE HONOURABLE SRI JUSTICE NARSING RAO NANDIKONDA CIVIL REVISION PETITION No.510 OF 2019

O R D E R:

This Civil Revision Petition is filed under Article 115 of CPC being aggrieved by the Order dated 09.11.2018 passed in I.A.No.315 of 2013 in O.S.No.18 of 2010 by the learned Principal Junior Civil Judge, Sathupally, wherein the learned Court has dismissed the petition filed by the petitioners/defendants under Section 5 of the Limitation Act seeking to condone the delay of 14 days.

2. Heard Sri Ch.Janardhan Reddy, learned counsel for the revision petitioners and Sri M.Prabhakar, learned counsel, representing, Sri Kowturu Pavan Kumar, learned counsel for the respondents. Perused the record.

3. The petitioners herein are defendants and the respondents herein are plaintiffs before the trial Court.

4. The brief facts of the case are that plaintiffs filed a suit seeking perpetual injunction against the respondents restraining the defendants therein from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property. Pending suit, the petitioners herein have received summons from the Court and engaged Sri Sk. Imamvali, Advocate and filed the written statement. It is also mentioned that the said Advocate did not inform them about the suit proceedings till date and on 07.11.2013, the respondents trespassed into the lands of the plaintiffs and stated that they are the owners of the lands, basing on the decree passed by the Court on 23.04.2013. Further, that on 07.11.2013, when the defendants tried to trespass into the lands, then he came to know about the passing of the decree by the trial Court. Immediately, they engaged another Advocate and on enquiry they came to know about the decree passed by the trial Court.

5. Learned counsel for the petitioners contended that the petitioners are the absolute owners of the suit schedule property and that respondents have no right over the suit schedule property and further contended that though the said decree was passed on 23.04.2013, the application under Order IX Rule 13 ought to have been filed within one month from the date of the decree i.e., 23.05.2013. He further contended that the petitioners came to know about the order of ex parte decree only on 07.11.2013. As such, there occurred a delay of 14 days in filing of the application to set aside the ex parte decree and they came to know about the suit proceedings only on 07.11.2013.

6. Respondents filed counter-affidavit denying the averments made in the petition and contended that the delay has to be calculated from

23.04.2013 i.e., the date of decree. He prays to dismiss the petition.

7. The trial Court below, having heard both the learned counsel, held that calculating the delay from the date of the said incident is not correct and that the reason mentioned for non-prosecution of the suit that their counsel did not inform about the case was not convincing and that the petitioners ought to have followed the case proceedings. The Court below further held that affidavit of the said Advocate Sri Sk. Imamvali is not filed to show that he did not inform the petitioners in regard to the suit proceedings. Further, the Court below held that the decisions relied on by the learned counsel for the petitioners were not applicable to the facts of the present case.

8. Having, heard both the learned counsel for the revision petitioners and the learned counsel for the respondents, the main grievance of the petitioners before this Court is that the petitioners were not having the knowledge about the suit proceedings and could not contest the suit. Having engaged counsel, who did not choose to inform about the petitioners about the day to day proceedings, they were not having the knowledge of passing of the ex parte decree. As per the affidavit wherein, the petitioners contended that they are having knowledge about the filing of the application within 30 days from the date of the decree but could not file the same within 30