MSHYAMALA Vs. DISTRICT PANCHAYAT OFFICER

JUDGEMENT

(1.) The petitioner herein was elected as Member of Ward No.5 of Dammaiguda Village of Keesara Mandal in Ranga Reddy District. The second respondent, who also contested the election and lost, filed an application before the first respondent alleging that the petitioner incurred disqualification under Section 19(3) of the Andhra Pradesh Panchayat Raj Act, 1994 (for short 'the Act), on the ground that she was having three children. Therefore, the first respondent issued orders on 22.08.2003 disqualifying her under Section 19(3) of the Act. Aggrieved by the same, the petitioner filed O.P.No.513 of 2003 on the file of the Court of the Principal District Judge, Ranga Reddy District. The same was coming up for enqyiry. On 01.07.2004, the said O.P was dismissed as the Counsel for the petitioner was absent when the case was called. Therefore, the petitioner filed an application under Order IX Rule 9 of the Code of Civil Procedure, 1908 (CPC), for restoration of Original Petition. There was a delay and therefore, she also filed I.A.No.2716 of 2004 under Section 5 of the Limitation Act, 1963, for Condonation of delay of 71 days in filing the application under Order IX Rule 9 of CPC. By impugned order dated 10.02.2006, the same was dismissed. This order is the subject matter of this Civil Revision Petition filed under Section 115 of CPC.

(2.) The learned Counsel for the petitioner contends that the delay on the part of the petitioner in filing the application to set aside the order dismissing the O.P for default was neither willful nor wanton and the Court ought to have taken a liberal view in entertaining the application, being I.A.No.2716 of 2006. He placed reliance on the decisions of the Supreme Court in Collector, Land Acquisition, Anantnag v. Katiji, AIR 1987 SC 1353 G.Ramegowda v. Special Land Acquisition Officer, AIR 1988 SC 897 and the decision of this Court in Movva Anjamma v. Abhineni Anasuya, 1999 (1) ALT 327 in support of the contention that when the questions of substantial justice are involved, the cause cannot be defeated by delay. Per contra, the learned Counsel for the second respondent submits that the petitioner did not show any sufficient cause in her application accompanying I.A.No.2716 of 2004, and therefore, the impugned order is justified.

(3.) The petitioner made the following allegations in her affidavit filed before the lower Court along with I.A.No.2716 of 2004. I submit that I filed the above O.P against the Respondent to stay the impugned orders passed by the Respondent in proceedings No.E/206/2003 dt.22.08.2003 under Section 19(3) of the A.P.Panchayat Raj Act, 1994. The said O.P. was posted to 1-7-2004, on that myself and my advocate unable to appear before this Court, and the Hon'ble Court called the case and passed the dismissal order for non representation, my advocate on record is engaged in another court as such he could not represent the same at the time of calling the case. The non representation on the said date is neither willful nor wanton due to the said reasons only.