HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CIVIL REVISION PETITION No.274 of 2024

ORDER:

The present revision is filed aggrieved by the order dated 06.11.2023 passed in I.A.No.1573 of 2019 in O.S.No.45 of 2010 on the file of the X Additional Chief Judge, City Civil Court, Hyderabad.

2. Heard Sri V.Padam Narayan, learned counsel for the petitioners. It is mentioned in the Revision that respondent Nos.1 to 4 are not necessary parties to this revision. None appeared for respondent Nos.5 to 8, despite service of notice. Therefore, the matter is being disposed of based on the material available on record.

3. The petitioners herein are the legal heirs of plaintiff No.2, respondent Nos.1 to 4 are defendant Nos.1 to 4 and respondent Nos.5 to 8 are plaintiff Nos.1 and 3 to 5 respectively, before the trial Court. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.

4. The brief factual matrix of the case is that plaintiff Nos.1 and 3 to 5 along with one Birju Singh (plaintiff No.2), filed a suit against defendant Nos.1 to 4 herein for partition of suit schedule property. When the matter was coming up for defendants' evidence, at that stage, one Birju Singh, who is plaintiff No.2 and was examined as PW2, expired on 20.08.2015 and consequently, I.A.No.638 of 2016 was filed to bring the legal representatives of the deceased Birju Singh on record and the same was allowed vide 19.04.2016 and the suit was posted for carrying out the necessary amendments and filing of fair copy. However, it appears that the suit was dismissed on 19.06.2017 for not carrying out the necessary amendments and for not filing fair copy of the plaint.

5. I.A.No.1573 of 2019 was filed under Section 5 of the Limitation Act to condone the delay of 914 days in filing the restoration petition in O.S. No.45 of 2010. It is averred that the plaintiffs are illiterates and they are dependent on their counsel, and as they were not aware of the proceedings, the delay may be condoned.

6. Nevertheless, the trial Court, vide impugned order dated 06.11.2023, dismissed the application primarily on the ground that the matter was adjourned from time to time for filing a neat copy and carrying out the amendments. Despite giving sufficient opportunity, neither any amendment was carried out nor fair copy was filed. Further the reasons assigned by the plaintiffs that the counsel did not take any interest in filing neat copy and carrying out the amendments do not constitute sufficient ground to consider the application. The plaintiffs ought to have been diligent in pursuing the matter. The trial Court further observed that the plaintiffs failed to properly explain the reasons for delay and as such, the Court was not convinced and thus, dismissed the application. Aggrieved by the said order, this revision is filed.

7. Learned counsel for the petitioners would submit that the trial Court erroneously dismissed the application and failed to consider the facts that the evidence on behalf of the plaintiffs was completed, and the matter was at the stage of recording the defendants’ side evidence, at which point of time plaintiff No.2 expired; that, the plaintiffs are illiterates and are not aware of the Court proceedings and are dependent on their counsel. Hence, any mistake or default on the part of the learned counsel, the plaintiffs ought not to be penalised.

8. Leaned counsel for the petitioners would further submit that non-carrying out of the amendments and non-filing of fair copy would result in abatement of suit only insofar as plaintiff No.2 is concerned, however, the suit with respect to other plaintiffs survives, and therefore, the trial Court committed error in dismissing the suit, instead of abetting the suit only against plaintiff No.2 and proceeding further with the suit insofar as other plaintiffs are concerned. Learned counsel for the petitioners relied upon the judgment of the erstwhile High Court of Andhra Pradesh in Ithagani Lachaiah and others v