VANDANAPU GOPAL Vs. OLORANGARA MOOSA HAJI

JUDGEMENT

(1.) The defendant before the learned trial Court filed this revision under Sec. 115 C.P.C. seeking to set aside the order dtd. 16/8/2019 of learned Principal District Judge, West Godavari, Eluru in I.A.No.1852 of 2018 in A.S.S.R.No.5126 of 2018. The respondent herein is the plaintiff before the trial Court and respondent in I.A.No.1852 of 2018 before the 1st appellate Court namely learned Principal District Judge, West Godavari, Eluru.

(2.) O.S.No.415 of 2008 was tried and decreed in favour of the plaintiff by learned I Additional Junior Civil Judge, Eluru. The relief granted was a mandatory injunction whereunder the defendant was directed to remove certain structures and was also directed to handover possession of 2 square yards of site to the plaintiff. There was also a relief of permanent injunction granted in favour of the plaintiff. The judgment was passed by the learned I Additional Junior Civil Judge, Eluru on 8/5/2015. Subsequently, alleging non-compliance with decree directions, the plaintiff as D.Hr. filed E.P.No.42 of 2016 and the said E.P. was filed on 19/1/2016. It was thereafter the defendant in the suit though of filing an appeal and in the process he found there was delay of 931 days and therefore, he moved I.A.No.1852 of 2018 under Sec. 5 of the Limitation Act seeking for condonation of that delay and enable him to prefer the first appeal. In the sworn affidavit, the defendant stated that the cause of delay in preferring the appeal was that there was an original encroacher of the suit schedule property and the wife of that original encroacher approached the defendant and his family members and requested time to handover possession of the property and there was a common understanding and the matter was reduced in writing. It was in those circumstances, the defendant could not prefer his first appeal within time. Then allegations are also made against the plaintiff stating that he is only a name lender and he did not cooperate with the original encroacher and made some other allegations. It is in those facts and circumstances, he sought for condonation of 931 days delay. One would see the plaintiff, who is respondent in I.A.No.1852 of 2018, did not file a counter and was set ex parte. Thereafter, the learned Principal District Judge, West Godavari, Eluru on considering the material on record and after citing principles of law for condonation of delay stated that attitude of the petitioner clearly showed negligence in prosecuting the proceedings and liberal construction of Sec. 5 of the Limitation Act is possible in appropriate circumstances but not in a case of the present nature and recording that the cause shown was neither a valid cause nor a sufficient cause, dismissed that petition. Aggrieved by that, this revision is filed stating that the impugned order is incorrect since in those proceedings the opposite party did not even put up contest. It is further stated that the lower Court failed to see that it is this revision petitioner, who was deceived by the respondent/plaintiff since plaintiff offered compromise and that prevented the revision petitioner from filing first appeal before the trial Court. Order is erroneous and against law. For these reasons, he sought for setting aside of the impugned order.

(3.) The plaintiff before the learned trial Court who is respondent herein filed a counter affidavit narrating the history of the Case. Substance of this counter is that all that is pleaded in the revision is completely incorrect and false. It is stated that as a D.Hr. plaintiff filed execution petition and E.P. was pending since 19/1/2016 and the defendant as J.Dr. put up his appearance through his lawyer on 26/7/2016 and filed a counter on 22/11/2016. Thereafter executing Court commenced enquiry and D.Hr. gave evidence on 30/3/2017 and initially the J.Dr. failed to cross-examine and subsequently came up with a petition to reopen and the executing Court allowed it and then D.Hr. was cross-examined on 21/11/2017. Then the matter was posted for evidence on J.Dr. side and J.Dr. failed to adduce evidence and at that time the executing Court posted the execution petition for orders on 29/11/2017. It was since then J.Dr. was filing one or the other petitions. That this revision petitioner having participated in the execution proceedings since 26/7/2016 now decided to file first appeal on frivolous grounds and all that is to drag on the proceedings. That the D.Hr. is aged 75 years and has been in the litigation for 15 years for his legitimate rights over 2 square yards of site. For these reasons, respondent/plaintiff seeks for dismissal of the revision.