The High Court · 2025

13. Smt. P Mallamma, Wo. Late Veerasangappa, Occ Agriculture, Rio. Devarampally Village, Jharasangam Manda[, Medak District. (RR 9 to 13 to impleaded vide Court Order dated 27.02.2017 in CMAMP No.1834 of 2016 in CMA No 4'12 of 2013).

14. P. Neela Lohit @ P. Neela Rohit, S/o. Late P, Veerasangappa, Occ Advocate, R/o (V) Devarmpally. (M) Jharasangam, Dist Medak, T.S. at Present R/o. H.No '1-2-305. Flat No G-2. Ajay Avenue Apts, Gaganmahal main road, Domalguda. Hyderabad. (R14 are brought on record as LR of the deceased R5 vide Court Order dated2T 022017 in CMAMP No.750 of 2016 in CMA No.412 of 2013). ...RESPONDENTS Counsel for the Appellants: Sri J. Venkateswara Reddy Counsel for the Respondents: Sri Nizampur Chandra Sekhar The Court delivered the following: JUDGMENT ,z THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA - CIVIL MISCELLANEOUS APPEAL.NO. 4L2 OF 2013 . JUDGEMENT: This Civil Miscellaleous Appeal is filed under Order 43 Rule 1 of Code of Civil Procedure, 1908 (herein referred as CPC), being aggrieved by the orders dated 15.02.2013 passed in I.A.No.675 of 2Ol2 in O.S.NO.02 of 2001 by Ist Additional District Judge, Medak at Sangareddy, wherein in I.A. filed under Order 9 Rule 9 read with Sec. 15 1 Code of Civil Procedure, 19OB was dismissed. Being aggrieved by the same, the present appeal is filed.

2. The brief facts of the case are that the piaintiff herein has filed a suit for pafiition and separate possession of the suit scheduled property against the respondents/ defendalts Nos.1 to 8 initially, and subsequently impleaded the defendants Nos.9 to 13. The case of the appellant/plaintiff was that when the matter was posted for trial on 05.06.2012, on the said date the senior counsel was out of station on his personal w'ork, and though the junior counsel was present and sought for an adjournment, since there was a direction from the High Court, the tria-l Court recorded the said 2 - representation, and dismissed the suit. The said dismissal was challenged, contending that the absence of the plaintiff/appellant on 05.06.2012 and failure to file the evidence u,as neither willftrl nor wanton, and it was prayed that the application be allowed.

3. The respondents filed a counter denying the genuineness of the averments made in the petition and contended that ample opportunities were given to the plaintiff to commence the tria-l, but they did not choose to get ready. Though earlier under similar circumstances the suit was dismissed, a restoration application was filed along with an application to condone the delay of 1348 days. The said I.A. r,r'as dismissed by the trial Court, against which CRP No.590 of 2011 was filed, and the said CRP was allowed by the this High Court by taking a lenient view ard by imposing the cost ol Rs. 1,50Oi -. It is further contended by the respondent that ample opportunities were given to the plaintiff, but they did not utilize the same to commence the trial. In vieu, of the above, he supported the order passed by the iearned Judge, stating that the sarne was passed after l giving ample opportunity to the plaintiff and also by observing the conduct of the plaintiff therein.

4. Having heard Sri. J.Venkateswara Reddy, learned counsel for the petitioners and Sri Nizampur Chandra Sekhar, learned counsel for the respondents.

5. Having perused the entire material placed on record, the petition alfidavit arrd the order passed by the learned trial Court Judge, the learned counsel for the petitioner has contended that on the said date, the plaintiff could not be present but immediately after the dismissal of the suit, within 1O days, the petitioner carne up with an application under Order 9 Rule 9 along with the supporting affidavit of the plaintiff. He further contends that the said suit is for the I reiief of partition and that vaiuable rights of the plaintiff wiil be affected if the suit is not restored back to file. The learned counsel for the respondent has argued and contended that though the petitioner was provided ample opportunities, the plaintiff did not choose to utilize the same or get ready with the application, and considering his conduct, the suit was 4 - dismissed ald stated that this being the second instance of dismissal, no lenience can be taken in the present case 6, Having considered the contentions and rival contentions of both the parties, as it is seen, admittedly the said suit is for partition filed in the year 2OO1 and today we are in the year 2025. On record, the ages of the parties in the said suit are that the plaintiffs are aged between 43-45 years a:ed the defendants are aged between 29-7 O yexs, i.e., as on the date of filing ol the suit in the year 200 1. Though the learned counsel for the petitioner contended that the present suit is for partition and their valuable rights are going to be effected if the said suit is not restored back, but considering the fact that the learned Judge has dismissed the application under Order 9 Rule 9 at Para 7 of the order, detailing the entire conduct of the plaintiff in pursuing the suit, it is evident that despite repeated opportunities, the plaintiff failed to prosecute the matter diligently.

7. Initially, the suit was dismissed on 29.08.2006, and after the delay of 1348 days, a restoration application was frled in the year 2010. The sarne was dismissed by the trial I 5 Court, against '*,hich a revision petition was filed and was allowed on 24.1O.2OI1 with a condition that the petitioner/ plaintilf shall proceed with the trial without any delay. It is also seen from the said Order of the High Court in the said CRP that an undertaking was given by the counsel appearing for the petitioner/plaintiff that his clients would proceed with the matter without protracting the same any further ald r.r'ould complete their evidence within a month. As such, this Court in CRP No.590 of 2011 was pleased to aliow the CRP, condoning the delay of 1348 days, and setting aside the ex parte decree on payment of cost of Rs.1,500/-.

8. In spite of the above instructions, as it is clear from the order passed by the learned Judge for restoration of the suit dated 16.02.2O12, ln spite of the undertaking given before this Court in CRP No.590 of 20 11, but the plaintiff did not choose to get ready and sought for adjournments on O9.O3.2O12, 16.03.2012 and 03.04.2012. The matter was adjourned to 17.O42O12 u'ith a cost of Rs.SO/-, but even on that date the plaintiff did not get ready. A further cost of Rs. 100/- was imposed, and the matter was adjourned to .IIE 6

27.O4.2O12. Though the plaintiff paid the amounts, he did not choose to proceed, finally, the matter u,as posted to

05.06.2O 12. Even on that date, there r,vas no representation Hence, the learned Judge, considering the conduct of the plaintifl and the failure to honour the undertaking given before the High Court, rightly dismissed the application

9. This Court does not see any error committed by the learned Judge in dismissing the application. Considering the conduct of the petitioner/ plaintiff, no lenient view can be taken in the present case. Hence, in the said circumstances, the Civil Revision Petition is dismissed.

10. Accordingly, the Civil Miscellaneous Appeal 1S dismissed. There shall be no order as to costs Miscellaneous petitions, if any, pending in this revision petition shall stand closed. //TRUE COPY' t SD/. L. LAKSHMI BABU DEPUTY REGISTRAR SECTION OFFICER To,

1. 2.

3. 4. aK The lAdditional District Judge, Medak at Sanga One CC to Sri J. Venkateswara Redd y, Advoca One CC to Sri Nizampur Chandra Sek Two CD Copies har, Advocate tOpUCI y (with records, if any) loPUCl W HIGH COURT DATED:2210912025 I C) r.) JUDGMENT CMA.No.412 of 2013 DISMlSSING THE CMA @ I j v 'tb