The High Court · 2025

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to receive the documents i.e., death certificate and medical records of Yashoda hospital of Nallavelli seenu by granting leave to that effect. Counsel for the Petitioners: SRI K. SREENIVAS Counsel for the Respondent No.1: SRI J. SURESH BABU The Court made the following: ORDER TIIE HONOURABLE DR.JUSTICE G.RADHA RANI I.A. No.l of 2025 In/and CIVI REVISION PETITION No.7l8 of 2019 ORDER: This Civil Revision Petition is filed by the petitioners-defendant Nos.1, 3 to 6 aggrieved by the order dated 16.04.201g in I.A. No.12l of 2015 in O.S. No.99 of 2011 passed by the Senior Civil Judge, Nalgonda.

2. The respondent No.l-plaintiff filed O.S No.99 of 2Qll for partition of the suit schedule properties and to allot l/3d share to her in the suit lands. An ex parte decree was passed on 19.07.2013. The defendant Nos.l to 6 filed an application to set aside the ex parte deqee and as there was a delay of 197 days in filing the petition, filed I.A No.l21 of 2015 under Section 5 of the Limitation Act to condone the delay in filing the petition under Order IX Rule 13 of CpC. The said application filed under Order IX Rule 13 of CpC was numbered as I.A. No.1417 of 2016 and a common order was passed in both the petitions by the leamed Senior Civil Judge, Nalgonda, dismissing the applications. Aggrieved by the same, the defendant Nos.l, 3 to 6 preferred this revision against the dismissal of the condone delay application vide I.A. No.12l of 2015./ i : I i 2 Dr GR&J CRP No i 18 ol20 t9 \ I

3. Heard Sri K. Sreenivas, leamed counsel for the petitioners and Sri J. Suresh Babu, leamed Counsel for the respondent No.1.

4. Leame<l counsel for the petitioners submiued that defendant No.2 in O.S. No.99 of 2011 - petitionerNo.2 in I.A. No. 121 of 2015 was suffering with blood cancer and the other petitioners were forced to stay at the hospita.l and they were in distress, as such, they could not file the written staternent within the stipulated period. The petitioners filed their wriften statement along with the ex parte decree set aside petition and delay condonation petition to prove their bonafides. The trial court ought to have considered the explanation given by the petitioners for the delay and ought t,c have set aside the ex parte decree. The suit was filed for partition and substantial rights of the parties were involved. The trial court failed to see that liberal construction' ought to have been given while considering the delay condonation petitions. An oppor:tunity ought to have been given to the parties to enable them to contest the matter, as the matter could be decided on merits. The approach of the trial court in dismissing the petition was not proper and prayed to set aside the impugned order. I I / 1 DT GRRJ CR? No.718 of 2019

5. The leamed counsel for the respondent No.l, on the other hand, contended that no document was filed by the petitioners before the trial court in support of their contention that the defendant No.2 was suffering with blood cancer. To cover up their lacunae, they filed the documents at this stage. No appeal was preferred against dismissal of I.A. No.14l7 of 2016. The final decree proceedings were pending before the trial court. The Advocate Commissioner's report was also filed and the same was posted for calling objections on the said report. Even though the defendant No.2 died, other petitioners ought to have taken care of the matter and relied upon tlle judgment of the Hon'ble Apex Court in Estate Officer, Ilaryana Urban Development Authority and another v. Gopi Chand Atrejar and of the erstwhile High Court of Andhra Pradesh in Jangana Rajendra Kumar v. Basava Srinivas2.

6. The leamed counsel for the petitioners in his reply submitted that in I.A. No.121 of 2015, affidavit was filed by the petitioner No.2 therein (defendant No.2) himself stating that he was suffering with blood cancer and was admitted in the hospital for the last two years and the other petitioners being his family members were attending him and ' 2or9 (3) ALD l7o (sc) 2 zott 121 e^Lo zl3 4 Dt.GR&J CR? No 718 of 2019 \ also held up with him in the hospital. He further submitted that the defendant No.2 <lied on 24.09.2014. The petitioners herein being the mother, younger brother and the married sisters of lhe deceased defendant No.2, due to their illiteracy could not file the relevant documents before the trial court in proof of the treatment of defendant No.2. The trial court ought not to have numbered the petition filed under Order IX Rue 13 of CPC until the condonation of delay petition was allowed and relied upon the judgment of the erstwhile High Court of Andhra Pradesh in S. Viswanath Reddy v. N. Venkateswara Reddy and othersr on the aspect that the powers of the High Court under Section I 1 5 of CPC were such that to set right the matters which were in controversy and for rendering proper justice, the court should take note of such an order passed which was not challenged and is competent to decide the matter to set right the controversy once for all. He also relied upon the judgment of the erstwhile High Court of Andhra Pradesh in Vemuru Ramasubbayya v. Bollu Sarojini and anothera on the aspect that the High Court is entitled, in a proper case, to interfere in revision even without an application to it by the party interested. ' rqqz (s) lr-o oae 1971 (t) An.w.R.332 o ') 5 DLGRRJ

7. Learned counsel for the petitioners filed I.A. No.2 of 2025 in this CRP to receive the documents i.e. the death certificate of deceased defendant No.2 and the medical records in proof of his treatment at Yashoda Hospital.

8. Considering that the defendant No.2 himsetf filed an affidavit before the trial court in I.A. No.l21 of 2015 stating that he was suffering with blood cancer and was undergoing treatment and that the petitioners could not contact their counsel due to his ill health as they were held up with him in the hospital and the said affidavit was filed on 24.02.2014 and he subsequently died on 24.09.2014 and the said plea was not something new created by the petitioners at this stage, it is considered fit to allow I.A. No.l of 2025 permitting the petitioners to file the death certificate of defendant No.2 and his medical record issued by Yashoda Hospital, to be brought on record.

9. As seen from the impugned order passed by the trial court in I.A. No.l21 of 2015 in O.S. No.99 of 2011, the trial court dismissed the said application on the ground that the petition was silent as to when the petitioner No.2 suffered with blood cancer, when he was admitted in the hospital and when he was discharged. The petition was silent about the 2 6 DLCRRJ \ date when the petitioners came to know about passing of rhe ex parte decree in the main suit. Atleast one of the petitioners ought to have \ approached the counsel to know the stage of the case. The petitioners were not vigilant in prosecuting the matter. The delay of 197 days was not properly explained.

10. The documents filed by the petitioners in this CRP would disclose that the defendant No.2 was suffering with blood cancer and had taken treatment at Yashoda Hospital during the year 2013 and died with the said ailment ot 24.09.2014. The petitioner fIo.l was the mother of the de,:eased defendant No.2, who was aged 60 years and the petitioner Nos.3 to 5 in this CRP were married sisters of defendant No.2. As such, these u'omen might not be well versed with the court matters or might not be in contact with their counsel for giving instructions to him for hling thr:ir written statement. The petitioner No.Z in this CRP was their younger brother and the only male person, who might be looking after his family and looking after his brother in the hospital during the said period. The delay sought to be condoned was also not inordinate, but only 197 days. The suit was hled for partition. Substantial rights of the parties were involved. The documents filed would disclose that there is sufficient cause for condoning the delay. In I 7 D CRRJ order to prove their bonafides, the petitioners also filed their written statement along with the petition to set aside the ex parte decree. As such, the trial court ought to have allowed the application, as the Hon'ble Apex Court in several cases stated that the word 'sufficient cause' has to be construed liberally. In Collector, Land Acquisition, Ananthnag v. Mst. Katiji & Ors.5, the Hon'ble Apex Court emphasized that refusal to condone the delay should not result in dismissing a meritorious matter. It further observed that ordinarily a litigant does not benefit from filing an appeal late. It was not necessary to explain every days delay and if the delay was not deliberate it should be condoned, especially if refusing to condone the delay would result in throwing out a meritorious matter. A liberal approach was advocated in construing the existence of sufficient cause in considering the applications for condonation of delay, emphasizing the importance of a justice orientetl approach and need to avoid technicalities from overriding the merits of a case.

11. The citations relied on by the learned counsel for the respondent No. l, are pertaining to the cases where the delay was inordinate. [n Estate Officer, HarTana Urban Development '(1987) 2 scc lo7 8 Dt-GRRJ I Authority and another v. Gopi Chand Atreja (l supra), there was a delay of 1942 days and as the said delay was not properly explained, the Hon'ble Apex court held that there was no justification for condoning the said inordinate delay of four years six months in filing the second appeal, and the same could not constitute a sufficient cause within the meaning of section 5 0f the Limitation Act. In the other case of Jangan Rajendra Kumar v. Basava Srinivas (2 supra), the erstwhile High court of A'p' observed that the explanation offered by the petitioner was bereft of material particulars. There was a delay of 6g 1 days iir filing the petition to set aside the ex parte decree by the defendant in the said case.

12. In matters of condonation of delay, each case has to be decided on its own merits, basing upon the facts and circumstances of the said cases. As the petitioners are able to show that there are justifiable grounds for them in filing the petition for setting aside the ex parte decree with a delay, the trial court ought to have allowed the same.

13. With regard to the other contention raised by the leamed counsel for the respondent No.l that the petitioners have filed this revision petition only against the order in I.A. No. l2l of 20l5,but not j 9 D.-cRRJ CRr No.7l6 oJ 2019 preferred any appeal or revision against the order in I.A. No.l4l7 of 2016 in O.S. No.99 of 2011 which was also passed through the common judgment, the trial court ought not to have numbered the petition filed under Order IX Rule 13 of CPC at the first instance before allowing the petition filed under Section 5 of the Limitation Act. However, the judgment of the erstwhile High Court of A.P. in S. Viswanath Reddy v. N. Venkateswara Reddy and others, wherein also an application to set aside an ex parte decree was filed along with an application to condone the delay and the application for condonation was allowed subject to the condition of depositing certain amount within a particular date and a revision was filed against the said order and pending revision, in view of non-compliance of condition imposed, the application for condonation of delay was dismissed and no revision was filed against the said order, it was held that it was open to the High Court to take note of the said subsequent order passed by the court below to set right the matters in controversy to render proper justice.

14. The High Court held that in view of the language used in Section 115 of CPC, in order to see that proper justice is done to the parties, without there being a revision challenging the second order l passed by the trial court, when it is brought to the notice of the court at .r' 10 DLGRRJ I i the time of hearing, the court is competent to take note of'the fact and competent to decide the first order on merits.

15. The facts of the present case stands on a better footing than the above case. In the present case, both IAs were disposed of by a common order. In the above case, separate orders were passed. But even then the High court considered that even without a revision being preferred challenging the second order, the court is competent to take note of the same and to decide it on the merits of the first order. ,As this court has power under Section 115 of the cpc to adjudicate the issue, which was not directly challenged before the court, when the same was brought to the nntice of the court to render justice to the panies, it is considered fit to set aside the order passed in I.A. No. 141 7 of 2016 also along with the order in I.A. No.l2l of 2015 in O.S. No.99 of 2011.

16. In the result, the Civil Revision petition is allowed setting aside the cortmon order passed by the leamed Senior Civil Judge, Nalgonda in I.A. No.l21 of 2015 and I.A. No.l4l7 of 2016 in O.S. I No.99 of 2011 dated 16.04.2018 and both the applications are allowed and o.s. No.gg of 201 l is restored to file. The trial court is directed to a , 7 DT CRRJ CRP No 7lE o[2019 receive the written statement filed by the petitioners herein and decide the suit on merits afresh in accordance with law. I.A. No.l of 2025 is allowed granting leave to the petitioners to file the death certificate and medical record of the petitioner No.2 issued by Yashoda Hospital. No order as to costs. Miscellaneous petitions pending, if any, shall stand closed. //TRUE COPY// SDA A.V.S.PRASAD ASSISTANT REGISTRAR I SECTION OFFTCER . The Senior Civil Judge, Nalgonda. oire CC lo Sri K. Sreenivas, Advocate [OPUC] . One CC to Sri J. Suresh Babu, Advocate [OPUC] .. Two CD CoPies To, 1 2 3 4 Plp/DL w I HIGH COURT DATED:2710312025 ORDER |.A.NO.1 0F 2025 IN/AND CRP.No.718 of 2019 seH1 rA Ie. u 1t A?f, zffi aI t j a ALLOWING THE C.R.P. AND |.A.-NO.1 0F 2025. @ 0lLl )d t