Mukkera Allaiah v. Chevegoni Sreenaiah @ Srinivasulu

Chevegoni Sreenaiah @ Srinivasulu … RESPONDENT ORDER: This revision is directed against the order dated 23-12-2009 passed in I.A.No.1130 of 2007 in un-registered appeal suit on the file of the Principal District Judge at Nalgonda, whereby and whereunder the learned Judge dismissed the application refusing to condone the delay of 224 days in filing the appeal against the judgment and decree dated 21-06-2006 passed in O.S.No.35 of 2004 on the file of the Junior Civil Judge, Nakrekal.

2. Background facts in nutshell leading to filing of this petition by the defendants in O.S.No.35 of 2004 on the file of the Junior Civil Judge, Nakrekal are: The respondent herein filed O.S.No.35 of 2004 on the file of the Junior Civil Judge, Nakrekal for permanent injunction. The petitioners filed a report before the Police against the respondent- plaintiff alleging that he trespassed into the land. The Police registered a case and thereafter filed a charge sheet before the Judicial Magistrate of First Class, Nakrekal. The learned Magistrate took the charge sheet on file as C.C.No.425 of 2005. The suit being O.S.No.35 of 2004 and C.C.No.425 of 2005 proceeded in the Court of Judicial Magistrate of First Class, Nakrekal. The suit ended in a decree on 21-06-2006. During the course of trial in C.C.No.425 of 2005, the result of the suit was brought to the notice of the witnesses. Thereafter the petitioners filed the appeal assailing the judgment and decree dated 21-06-2006 passed in O.S.No.35 of 2004. The also moved I.A.No.1130 of 2007 to condone the delay of 224 days in filing the appeal.

3. The first petitioner has sworn to the affidavit filed in support of the application filed under Order 41 Rule III-A of the Code of Civil Procedure. The relevant portion of the affidavit needs to be noted as is thus: judgment. The “It is submit that we have to file appeal with in thirty days from the date of judgment, if the copy application was filed soon after judgment, the days spent in preparing the certified filed copy copies would be excluded. Our advocate judgment was application soon after pronounced on 21-06-2006, copy application was filed on 26- 06-2006 and the stamps were called for on 17-07-2006. The copy of judgment and decree was ready on 17-07-2006. So we have to file the appeal with in thirty days from the date of receiving of certified copy of judgment and decree i.e., 12-08-2006. Therefore, the appeal has to file on or before 12-08-2006. So we could not file the appeal within time. So I pray the Hon’ble Court be pleased to condone the delay from 12-08-2006 to 23-04-2007 i.e., 224 days caused in filing the appeal. As the said delay was caused neither willful nor negligent and the same is caused as stated above due to un-avoidable circumstances. Therefore, it is just and necessary to condone the delay of 224 days caused in filing the appeal. Otherwise we would be put an irreparable loss and that cannot be compensated in any manner.”

4. The plaintiff filed counter resisting the application. It is stated in the counter-affidavit that the petitioners were examined as PWs.1 and 2 in C.C.No.425 of 2005 and the disposal of the suit was brought to their notice on 06-12-2006. Paragraph No.5 of the counter-affidavit needs to be noted and it is thus: “On 06-12-2006, the both the petitioners/appellants No.1 and 2 were examined as PWs-1 and 2 in the above said criminal case and in their cross-examination, they admitted that the respondent/respondent filed O.S.No.35 of 2004 against them for injunction and the same was decreed. The certified copies of their depositions in the said criminal case were filed herewith. It is submitted that the evidence of the LW-3 was given up by the prosecution in the said case. It is submitted that it is clear that the petitioners/appellants know before the date 06-12-2006, that the suit of the decree and judgment under appeal was decreed, and that they will fully neglected to file the appeal. It is submitted that petitioners/ appellants are having knowledge of the decree and judgment under appeal since the date of the decree i.e., 21- 06-2006 and they will fully neglected to prefer appeal. Showing false causes the petitioners/appellants filed this I.A. respondent/respondent. The petitioners/ appellants failed to explain the delay and there is inordinate delay that cannot be condoned. In view of these facts and circumstances the I.A. is liable to be dismissed.” damages

5. The petitioners examined one witness on their behalf and whereas the respondent-plaintiff examined one witness on his behalf and marked four documents as Exs.R-1 to R-5. Learned Principal District Judge, on considering the material brought on record and on hearing the learned counsel appearing for the parties, came to the conclusion that the petitioner failed to give reasonable explanation for the delay of 224 days and thereby refused to condone the delay by order dated 23-12-2009. Hence, this revision by the petitioners – defendants.

6. Heard learned counsel appearing for the petitioners – defendants and learned counsel appearing for the respondent – plaintiff.

7. Learned counsel appearing for the petitioners – defendants submits that the petitioners herein filed O.S.No.7 of 2003 on the file of the Junior Civil Judge, Nakrekal against the father of the respondent herein. The said suit is ended in dismissal and thereupon the petitioners preferred an appeal being A.S.No.7 of 2006 and the same is pending. A further submission has been made that the petitioners came to know of the disposal of the suit filed by the respondent – plaintiff on 15-04-2007 and immediately they approached the counsel engaged by them in O.S.No.35 of 2004 and filed an appeal with a delay condonation petition. Hence, there are no latches on the part of the petitioners.

8. Learned counsel appearing for the respondent – plaintiff submits that the petitioners were aware of the result of the suit as on 06-12-2006 on which date the result of the suit was brought to their notice and in which case it is impermissible for them that they came to know of the result of the suit on 15-04-2007.

9. I have gone through the order impugned in the revision and the material brought on record. The petitioners herein were examined as PWs.1 and 2 in C.C.No.425 of 2005. It was suggested to them while they were being examined as PWs.1 and 2 on 06-12-2006 about the disposal of O.S.No.35 of 2004. Indeed the learned Principal District Judge has taken note of the suggestion put to PWs.1 and 2 with regard to the disposal of O.S.No.35 of 2004 in refusing to condone the delay of 224 days in filing the appeal. Paragraph No.10 of the impugned order reads as hereunder: “Defendant No.1 filed his chief affidavit as PW-1 reiterating the averments made in the affidavit filed in support of this petition. During course of cross-examination he admitted that he filed criminal case against the plaintiff herein in Nakrekal Court and in that criminal case he gave evidence on 06-12- 2006. He denied the suggestion that he gave evidence in that criminal case admitting the decree passed against him in O.S.No.35 of 2004. He also denied the suggestion he was knowing about the decree passed in O.S.No.35 of 2004 as on 06-12-2006.”

10. The respondent – plaintiff exhibited C.C. of the deposition of PWs.1 and 2 as Exs.R-2 and R-3 and also the C.C. of the judgment in C.C.No.425 of 2005 as Ex.R-4 and R-5. The evidence brought on record clearly establishes that the disposal of the suit was brought to their notice on 06-12-2006 itself. But they did not choose to file the appeal atleast within 30 days from the date of their knowledge. They introduced the date of knowledge as 15-04-2007 without any basis.

11. The learned Principal District Judge has given cogent and convincing reasons for refusing to condone the delay of 224 days in filing the appeal. I do not see nay irregularity or illegality in the order impugned in the revision.

12. Accordingly, the Civil Revision Petition is dismissed. ___________________________ B. SESHASAYANA REDDY, J August 18, 2010. PN THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY CIVIL REVISION PETITION No.1470 of 2010 August 18, 2010