Civil Revision Petition No. 6150 of 2006 · High Court

This revision is filed against the order dated 27.07.2006 passed in I.A.No.295 of 2000 in O.S.No.58 of 1997 by the learned Senior Civil Judge, Sompeta.

The 1st petitioner herein is the 2nd defendant in the suit who filed the said I.A. to condone the delay of 893 days in presenting the petition under Order IX Rule 13 CPC. The learned Senior Civil Judge, Sompeta after hearing both the parties divided the period of delay into two distinct periods. The first period is from the date of filing of the suit till the date of receipt of the notice in the E.P. and the second period is from the date of receipt of the notice in the E.P. till the date of filing of the petition. After considering the application, counter, etc., the learned Senior Civil Judge vide his order dated 27.07.2006 condoned the delay of approximately 893 days for the first period i.e., from the date of filing of the suit till the date of receipt of the notice in the E.P. holding that the party did not have notice of the suit proceedings because there was no personal service effected.

However, for the subsequent period i.e., from the date of receipt of the notice in the E.P. till the date of filing of the application of I.A.No.295 of 2000, the delay was not condoned on the ground that the delay was not satisfactorily explained for those 37 days. Questioning the same, the present revision has been filed. Initially, the CRP was allowed vide order dated 07.12.2012 by this Court. Later it was noticed that the managing partner of the 1st respondent died and C.R.P.M.P.No.1604 of 2013 was 2 pending on that date. Therefore, the order dated 07.12.2012 allowing the CRP was recalled. The matter was again listed after serving notice to the respondents by personal service and also by paper publication but there was no representation for the respondents. Learned counsel for the petitioner was present and argued that the learned Judge took a hyper technical view in the matter. Hence, he prayed that a liberal view should be taken in matters of this nature.

This Court is also of the opinion that the lower Court took hyper technical view. When it condoned the delay of 893 days, it should have taken a liberal view in condoning the delay of 37 days from the date of receipt of the E.P. notice As has been repeatedly held by the Hon(cid:146)ble Supreme Court that it is not the length of the delay but it is the cause for the delay that matters. In the affidavit, it is shown that the age of the 1st petitioner is 68 years by then and that he had no knowledge of the suit and that immediately after receipt of the notice in the E.P. he met his Advocate and handed over the papers to him in Itchapuram which is far away from the District Court, Srikakulam. Thereafter, after making due enquiries, he secured the particulars of the case and handed over the same to his Advocate, who did not file the application in time. Therefore, for all these reasons, he states that a delay of 37 days has occurred.