THE HON’BLE SRI JUSTICE T. VINOD KUMAR CIVIL REVISION PETITION No. 1681 of 2023

ORDER

1. The present Civil Revision Petition is filed aggrieved by the order dated 21.04.2023 in E.A. No. 8 of 2022 in E.A. No. 680 of 2018 in E.P. No. 341 of 2022(Old E.P. No. 288 of 2015) passed by the II Additional Senior Civil Judge, Medchal Malkajgiri District, At Malkajgiri.

2. The revision petitioner herein is the petitioner in the underlying application and Decree Holder in the Suit vide O.S. No. 1515 of

2010.

3. The revision petitioner had filed E.P. No. 341 of 2022 under Order XXI Rule 35 CPC seeking delivery of possession. In the aforesaid Execution Petition warrants were issued and executed on

30.10.2018 by delivery of possession to the revision petitioner.

4. The respondents/claim petitioners subsequently filed E.A. No. 680 of 2018 under Order XXI Rules 99 and 100 challenging the execution and sought for restoration of possession.

5. The petitioner was served notice of the said petition on 22.02.2018 but failed to file a counter until 10.01.2020, despite being granted repeated opportunities including conditional order of payment of cost, which was not complied. Thus, the Court below forfeited his right to file the counter.

6. The petitioners herein had filed an interlocutory application under Section 151 of CPC vide E.A. No. 8 of 2022 praying to set- aside the order dated. 10.01.2020 in E.A. No. 680 of 2018, by permitting the petitioner herein to file counter in the said application.

7. The Trial Court upon hearing both sides and perusing the record, observed that though the petitioner had claimed to be bedridden until 17.02.2020, failed to file any medical documentation supporting his claim. In contrast, the respondent had provided multiple references to the petitioner’s active legal participation during the relevant period. Furthermore, the petitioner did not file any rejoinder to rebut these allegations or to provide an explanation for failing to file a counter. In addition, the petitioner failed to specify the documents he intended to obtain for filing the counter.

8. The trial Court further observed that in the absence of any credible medical evidence or other justifiable grounds for the delay, and as sufficient cause was not shown to set aside the forfeiture order, dismissed the underlying application.

9. Heard Sri D. Ramakrishna, learned counsel for the petitioner, Sr. M. Shankar learned Counsel for respondent Nos. 1 and 2 and perused the record.

10.The petitioner herein contends that he being the decree holder, the E.P. schedule property having been delivered to him, the application filed by the respondents/claim petitioners vide E.A. 680 of 2018 seeking restoration of their alleged possession under Order XXI Rules 99 and 100 CPC cannot be permitted; and that prior to the filing of the said application, the claim petitioners had filed an application under Order XXI Rule 58 CPC, resisting delivery of possession, which was returned.

11.The Petitioner contends that the trial Court vide order dated. 10.01.2020 had forfeited the right of the petitioner herein to file a counter in the said E.A. No. 680 of 2018; that the petitioner thereafter filed the underlying interlocutory application vide. E.A. 8 of 2022 in E.A. No. 680 of 2018 praying for setting aside of the forfeiture order dated. 10.01.2020 and to grant permission to file his counter in the claim petition, as he was bedridden with chronic back pain from March 2019, and for the said reason he could not appear and file counter before the court below.

12.The petitioner further submits that he became aware of the order forfeiting his right to file counter after contacting his counsel; that due to the sudden outbreak of COVID-19, he was unable to obtain necessary documents from the concerned authorities to file the counter. It is further contended that these unavoidable circumstances constituted sufficient cause, which the Court below failed to consider before dismissing the petition.

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