THE HONOURABLE SMT. JUSTICE RENUKA YARA I.A.No.2 of 2024 in/and CIVIL REVISION PETITION NO.2842 OF 2024

COMMON ORDER:

This is a Civil Revision Petition filed by the petitioners/plaintiffs aggrieved by the order passed by the learned II Additional Chief Judge, City Civil Court, Hyderabad (for short ‘the Trial Court’) in I.A.No.684 of 2020 in O.S.No.309 of 2011, dated 18.04.2024, whereby, the petition filed under Section 5 of the Limitation Act to condone the delay of 1684 days in filing the petition to set aside the dismissal order dated

28.12.2015 passed in O.S.No.309 of 2011, has been dismissed.

2. Even though, notice has been served on the respondent/defendant, none appeared on his behalf.

3. Heard Sri. Manjiri S. Ganu, learned counsel for the petitioners/plaintiffs.

Facts of the case:

4. The case of the revision petitioners was that petitioner No.1 and his son Rohan Kinger suffered with ill health and were bed ridden, therefore, were frequently travelling for medical treatment to Mumbai and therefore, could not appear before the Court. Further, his counsel did not represent the suit and on account of the same, the suit was dismissed for non-appearance. Since he could not give instructions to his counsel to file set aside petition, there was a delay of 1684 days and therefore, sought to condone the delay.

5. The petition was not opposed as respondent/defendant remained ex-parte. The Trial Court considered as to whether delay of 1684 days in filing the petition under Order IX, Rule 9 of CPC can be considered and by placing reliance upon judgment of the Hon’ble Supreme Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy {(2013) 12 SCC 649}, N. Balakrishna v. M. Krishnamurthy {(1998) 7 SCC 123} and Basawaraj and another v. Special Land Acquisition Officer {(2013) 14 SCC 81}, it came to a conclusion that the reasons stated for delay is that firstly, the petitioner No.1 and his son were suffering with ill health, they were bed ridden and they were frequently travelling to Mumbai and therefore, could not instruct the counsel in time. In this context, it is held that the medical record is not filed before the Court to support the claim of ill health of petitioner No.1 and his son and that nature of illness is not specifically mentioned and how said illness prevented the petitioners from giving instructions to their counsel. It is further held that one who filed the suit needs to pursue the suit to its logical conclusion. Since there is inordinate delay of 1684 days, which smacks of negligence, in the absence of satisfactory explanation, held that the delay cannot be condoned, hence, dismissed the petition. Aggrieved by the said order, the present Revision Petition is filed.

Grounds of Revision:

6. In grounds of revision, the petitioners pleaded that a petition under Section 5 of Limitation Act should not be dealt hyper technically but has to be handled with liberal approach for the purpose of doing substantial justice. It is pleaded that the Trial Court ought to have condoned the delay as there were unforeseen and complicated events that took place in the lives of petitioners. Petitioner No.1 is suffering from Gout disease (excess Uric Acid in the body) and chronic kidney problem since 2015. Said disease caused him to become paralyzed due to gout attacks. Gout attacks include intense pain, stiffness, swelling, warmth, tenderness, etc. The petitioner No.1 suffered heart attack in 2023 and still under medication. The petitioner No.1’s son suffered adenoids which causes breathing defect, ear infections, sinusitis, etc. and he underwent operation twice i.e. adenoidectomy. The first surgery was a failure and therefore, second surgery had to be done. In view of these situations, the petition to set aside the dismissal order passed in O.S.No.309 of 2011 could not be filed in time. Further, there was Covid-19 in the year 2020. According to the petitioners, the Trial Court ought to have shown mercy by giving a final op