HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CIVIL REVISION PETITION No.96 of 2020

JUDGEMENT:

The Civil Revision Petition is filed questioning the order dated 22.07.2019 passed in IA.No.1369 of 2017 in OS.No.87 of 2013 by the Prl.District Judge, Mahabubnagar, whereby and whereunder the application filed by the petitioner under Section 5 of the Limitation Act to condone the delay of 1017 days in filing the application to set aside the ex-parte decree, was dismissed.

2. Heard M.Harshila, learned counsel representing Sri G.Tirupathi Reddy, learned counsel on record for the petitioner and Ms.P.Bhavana Rao, learned counsel for respondent No.2. The petitioner herein is defendant No.1, the Respondent Nos.1 to 6 are plaintiffs, and Respondent No.7 is defendant No.2 in the suit. 3. The factual matrix of the case in nut-shell, are that respondent Nos.1 to 6/plaintiffs, have filed OS.No.87 of 2013 on the file of Prl.District Judge at Mahabubnagar, for partition of suit schedule property against the petitioner/Defendant No.1 and respondent No.7/Defendant No.2. The petitioner on receipt of summons initially appeared in the suit, however, did not pursue the matter and was ultimately, set ex-parte. Consequently ex-

parte decree was passed by the trial Court vide order dated 06.11.2014 for partition of suit schedule property into three equal shares and to allot one such share to respondent Nos.1 to

6/plaintiffs.

4. Petitioner herein filed application vide IA.No.1369 of 2017 for condonation of delay of 1017 days in filing the application to set aside the exparte decree dated 06.11.2014. Respondents 1 to

6/plaintiffs filed counter and resisted the application.

5. The trial Court on consideration of pleadings and contentions put-forth by both the parties, dismissed the said application vide impugned order dated 22.07.2019 with an observation that petitioner failed to assign proper reasons for condonation of inordinate delay. Aggrieved by the impunged order present revision is filed.

6. Learned Counsel for the petitioner/D1 would submit that the trial Court did not properly appreciate the reasons assigned by the petitioner and dismissed the application with perverse findings. She would further submits that substantial rights of petitioner in the immoveable property are involved and therefore, a lenient view ought to have been taken by the trial Court, however, the trial Court failed to exercise the discretionary powers vested in it. She further submits that the petitioner did not pursue the suit only on the assurance given by the respondents 1 to 6/plaintiffs to withdraw the suit, and this aspect was not considered by the trial Court, thus, prayed to allow the revision.

7. Per contra learned counsel for respondents submitted that the petitioner failed to offer valid, proper reasons for condonation of inordinate delay and therefore, the trial Court has rightly dismissed the application. She would further submit that the revision is devoid of any merit and hence, prayed to dismiss the CRP.

8. In the affidavit filed in support of the application for condonation of delay of 1017 days, it is specifically stated that the petitioner appeared in the suit and engaged a counsel, however, did not pursue the matter on the assurance given by the respondents/plaintiffs that they would withdraw the suit. It is further averred that on 28.08.2017, the petitioner came to Mahabubnagar on personal work and met some notary advocate and on enquiry he came to know about the exparte decree dated 06.11.2014 was passed in the suit and Respondents 1 to 6 filed application the application for final decree and appointment of advocate commissioner vide IA.No.766 and 767 of 2016. It is also averred that there was already partition of suit schedule property among the parties and the parties are in exclusive possession of their respective shares, therefore, the suit is not maintainable and that the respondents 1 to 6/plaintiffs played fraud on the petitioner.

9. Perusal of record disclo