The Hon’ble Smt. Justice Renuka Yara Civil Revision Petition No.1710 of 2024

Order:

This is a Civil Revision Petition preferred aggrieved by the docket order passed by the learned Senior Civil Judge at Jangaon in I.A.No.275 of 2022 in O.S.No.37 of 2017, dated 08.04.2024.

2. Heard Sri Prudhvi Raj, learned counsel representing Sri Srinivas Rao Bodduluri, learned counsel for the revision petitioner/defendant No.3 and Sri P. Venkat Reddy, learned counsel for the respondent No.1/plaintiff.

3. The background facts of the case are that respondent No.1/plaintiff filed a suit for partition and separate possession vide O.S.No.37 of 2017 against the petitioner herein and respondent Nos.2 to 6. The said suit was posted for evidence of respondent No.1 on 10.06.2022. The suit was dismissed for non-prosecution on account of failure to adduce the evidence by respondent No.1. In that context, I.A under revision was filed under Order 9, Rule 9 of CPC to restore the suit. Said petition was allowed vide impugned docket order dated 08.04.2024. Aggrieved by the same, the present Civil Revision Petition is preferred.

4. In grounds of revision, it is pleaded that the docket order is illegal and arbitrary as under Order 3, Rule 1 of CPC, an application to a Court can be made only by a party-in-person or his/her recognized agent or a pleader. The deponent who deposed the affidavit in I.A.No.275 of 2022 is an Advocate clerk attached to the office of the counsel for respondent No.1. Said affidavit was filed without any authorization by respondent No.1. It is further pleaded that respondent No.1 who filed the suit for partition was not diligent in adducing the evidence and did not attend the Court immediately in spite of having knowledge about dismissal of the suit by 06.07.2022. Further, it is pleaded that there is no evidence filed to prove that respondent No.1 was out of Country on 10.06.2022 and that material papers were not furnished in I.A.No.275 of 2022. As such, prayed that the impugned order be set aside.

5. During arguments, the learned counsel for the revision petitioner vehemently contended that only a person who is well acquainted with the facts of the case being a party or an agent or authorized person alone can file the affidavit and said task cannot be entrusted to an Advocate clerk, that too without authorization. Since the affidavit filed by an Advocate clerk is untenable, the learned Trial Court ought to have dismissed the I.A. Also, it is argued that no evidence was produced to prove that respondent No.1 was abroad when the matter was posted for her evidence. As such, there are no grounds for restoration of the suit and therefore, the impugned order is liable to be set aside.

6. In response, the learned counsel for respondent No.1 contended that the Advocate clerk is well acquainted with the facts of the case as on date of its dismissal for non-prosecution. It is argued that the affidavit contains reasons for non-appearance of respondent No.1 for adducing evidence and therefore, the Advocate clerk rightly filed the affidavit in the absence of respondent No.1 who is abroad.

7. A perusal of the affidavit filed by the Advocate clerk shows that the bare minimum facts are revealed about the suit coming for trial on 10.06.2022. On the ground that respondent No.1 has been in USA where her children reside, the Trial court was pleased to dismiss the suit on account of failure to adduce evidence. The respondent No.1 travelled to USA on 10.11.2021 and she is scheduled to return to India on 20.08.2022. The deponent (Advocate clerk) is in contact with respondent No.1 and is acquainted with the facts of the case. The absence of respondent No.1 is on account of her stay abroad but not intentional. Since the Advocate clerk has knowledge about the facts leading to dismissal of the suit for non-prosecution, affidavit is filed along with petition to restore the suit.

8. In the instant case, the suit was dismissed for non- prosecution on account of failure to ad