DHARMAIAH N Vs. D ANNAPURNA

JUDGEMENT

(1.) This appeal, originally filed as a revision (C.R.P.No. 2572 of 2000) and later converted, is against the orders dismissing an application seeking restoration of an appeal dismissed for default, as per orders in I.A.No. 85 of 2000 in A.S.No. 32 of 1997 dated 19-6-2000 on the file of the VIII Additional Chief Judge, City Civil Court, Hyderabad.

(2.) On facts, originally, the appellants- plaintiffs, three in number, filed the suit in O.S.No. 2288 of 1990 on the file of the IV Assistant Judge, City Civil Courts, Hyderabad, seeking declaration of title and permanent injunction in respect of the suit property consisting of a house at Kandikal gate, Hyderabad, which was ultimately dismissed. As against the said dismissal, the petitioners filed an appeal in A.S.No. 32 of 1997. Meanwhile, the appellant No. 1 died on 6-1-1999 and it is represented that an application along with delay condonation was filed in LA. (SR) Nos. 797 and 798 of 1999 on 16-6-1999 and the same were pending. While so, the appellant No. 2 also died on 29-3-2000. However, the appeal was dismissed for default on 3-4-2000 as neither they were present nor there was any representation through Counsel. Hence the present application was filed for restoration of the appeal stating that in view of the death of the appellant No. 2, they were in mourning and could not be present and the Counsel, in view of other work, could not represent.

(3.) The respondents opposed the application denying all the allegations including the death of the appellant No. 2. The Court below on considering the rival allegations, dismissed the application on the ground that there is variation as to the date of death of the appellant No. 2 viz., . 29-3-2000 and 20-3-2000 and no death certificate is filed. The Court having waited for the whole day, dismissed the same. Further, the petitioners have been taking adjournments on earlier occasions and relied on the decision of a Division Bench of this Court in C. Venkatasuryanarayana Murthy vs. M. Ramabhadraraju to say that the restoration is not a grace.