IMTIAZ ALIAS IMTIAZ BASHA Vs. J.SREENIVASULU

JUDGEMENT

(1.) This civil revision petition is filed under Sec. 115 C.P.C. questioning the correctness of an order dtd. 12/2/2019 of learned Principal District Judge, Kurnool in I.A.No.1294 of 2017 in C.F.R.No.641 of 2017 in A.S.No.----of 2017. Defendant Nos.1 and 2 in the trial Court are the revision petitioners herein. The plaintiff before the trial Court is respondent No.1 herein. Defendant No.3 in the suit is respondent No.2 herein.

(2.) O.S.No.1267 of 2006 was filed by the plaintiff before learned Principal Junior Civil Judge, Kurnool and the prayer was concerning mandatory injunction for demolition of illegal constructions and for permanent injunction restraining the defendants therein from making any offensive constructions. After due trial, the suit was decreed in favour of the plaintiff. Finding that there was no response from the J.Drs., the decree holder sought for execution and filed E.P.No.4 of 2017 in O.S.No.1267 of 2006. While that execution proceedings were pending, defendant Nos.1 and 2, who lost their defence in the suit, thought of preferring an appeal. In the process, they found that there was 201 days delay and therefore, defendant Nos.1 and 2 filed I.A.No.1294 of 2017 under Sec. 5 of the Limitation Act praying the learned Principal District Judge, Kurnool to condone the delay. It is stated in the supporting affidavit that during the trial proceedings there was diligent participation however, erroneously trial Court decreed the suit in favour of the plaintiff and they sought for certified copies on 6/6/2016 and they were made ready on 18/6/2016 and the appeal was to be filed on or before 27/7/2016. However, it could not be filed before that date since petitioner No.2 is not worldly-wise and petitioner No.1 suffered from intermittent fever (PTB) and was very much worried about the decease and confined to the house and he took up treatment at K.M.Hospital, Kurnool and recently he recovered and because of the sickness he neither consulted his advocate nor his advocate informed him about the result of the suit. On 30/1/2017 they received notices in the execution petition and thereafter, petitioner No.1 was in survey of finding a senior lawyer and thereafter, he consulted the senior lawyer and preferred the first appeal and the delay is only because of these reasons. In the counter the facts averred in the petition are denied. It is then stated that for 10 good years the defendants dodged this suit and efforts to settle the matter at DLSA were also frustrated by the defendants and despite decree, the directions were not obliged and while execution petition is pending, they now came up with second thought and the delay is not properly explained. For these reasons, he sought for dismissal of the petition.

(3.) Learned Principal District Judge enquired into the matter and recorded the observations and conclusions. In para Nos.6 to 10 of the impugned order, it is stated by learned Principal District Jude that for condoning the delay in preferring the first appeal, it was necessary to keep in mind the nature of the suit and the litigation that went before the learned trial Court and so saying the order narrated the facts and then it mentions the execution proceedings and the stage of it. It is also stated that parties to the litigation are neighbours to each other and that having contested the suit for 10 years and having lost the defence, the defendants remained quite till the E.P. was filed and it then recorded the conduct of the defendants as projected by the plaintiff/D.Hr. and stated that the delay is deliberate. At para No.8 it fairly mentioned that defendant No.1/petitioner No.1 before it filed documents pertaining to his sickness, which include a certificate of sickness issued by K.M.Hospital, Kurnool and the medical prescriptions all of which showed that he was suffering from PTB and recorded that he was advised to take treatment and rest from 1/6/2016 to 31/1/2017. While accepting the correctness of it, the learned Principal District Judge took the view that the sickness was not of such a nature that disabled him from contacting his lawyer and from preferring the appeal. It was with those reasons, it negatived the prayer and dismissed the petition.