THE HON’BLE JUSTI CE B.R.MADHUSUDHAN RAO And

COMMON JUDGMENT

:

1. These Civil Revision Petitions are filed aggrieved by the orders in IA.No.1463 of 2022 and IA.No.1464 of 2022, dated 19.07.2023 in AS.No.82 of 2016 passed by learned III Additional Chief Judge, City Civil Court, Hyderabad.

2. IA.No.1463 of 2022 in AS.No.82 of 2016 is filed under section 5 of Limitation Act to condone the delay of 1172 days in filing the restoration petition under order 41 Rule 19 of Civil Procedure Code (for short ‘C.P.C.’) (vide IA.No.1464 of 2022), which were dismissed vide separate orders dated 19.07.2023.

3. The affidavits filed by the petitioner in IA.No.1463 of 2022 (Section 5 application) and IA.No.1464 of 2022 (to restore the Appeal) are one and the same. For convenience purpose, the contents of the affidavit in IA.No.1463 of 2022 is taken.

4. The petitioner has contended in the affidavit (IA.No.1463 of 2022) that the Trial Court Advocate has preferred Appeal against the judgment and decree in OS.No.2348 of 2013, dated 19.11.2014, passed by XX Junior Civil, Judge, City Civil Court, Hyderabad. On the advise of the Counsel, the matter was entrusted to Senior Advocate by name Sri P.Narasimha Reddy (2223) by obtaining the NOC. Petitioner was under hope that the Senior Advocate will take care of the case, he recently came to know that the Senior Advocate has vacated the house cum office as he suffered ill-health in COVID-19 and his phone number is also not working, his whereabouts were not known to anybody in the locality and on enquiry with the Trial Court Advocate, he came to know that the Appeal was dismissed for default on 28.08.2019. Petitioner was under the hope that Senior Advocate will handle the case and on his further enquiry, he came to know that Senior Advocate has not filed his vakalath in the Appeal, thereby, nobody appeared on his behalf. Ultimately, the Appeal was dismissed and he has good grounds in succeeding the Appeal and there was delay of 1172 days in filing the application for restoration of the Appeal vide IA.No.1464 of 2022.

5. Second respondent has filed similar counter in both the applications i.e., in IA.No.1463 of 2022 and in IA.No.1464 of 2022. It is contended that the Appeal was dismissed for default vide order dated 28.08.2019 and the restoration application is filed in the year 2022 and there was no proper explanation for such inordinate delay of 3 years 4 months in filing the said application, the petitioner has not mentioned the date of dismissal for default and he is not diligent in prosecuting the case, he is not entitled for the relief sought in the petition, prayed to dismiss both the applications.

6. The Trial Court after hearing the parties has dismissed both the applications i.e., IA.No.1463 of 2022 and IA.No.1464 of 2022 vide separate orders on 19.07.2023.

7.1. The grounds in both the CRPs are one and the same. For the convenience sake, grounds in CRP.No.3094 of 2023 is taken.

7.2. The Court below committed grave error in mechanically, passing the order inter-alia observing that the petitioner did not specifically state as to when he obtained the NOC from the Trial Court Advocate to engage a Senior Advocate namely P.Narasimha Reddy and wrongly assumed and misconstrued that the petitioner was not diligent in prosecuting the case despite explaining the attendant circumstances which has culminated in resulting inaction on the part of counsel to whom No Objection was entrusted and attributed latches and inaction to the revision petitioner is ill founded and unwarranted and does not stand to logic and totally ignored the cardinal principles of natural justice more specifically the concept of “audi Alteram Partem”.

7.3. The Trial Court totally ignored the fact that mere delay and latches in seeking the remedy for vindication of the valuable rights of citizen in India, within the set time frame perse shall not frustrate and extinguish the valuable right recognised under the Constitution of India. The Trial Court has