KOMMIDI MAHENDER REDDY Vs. KOMMIDI SURYAMMA

JUDGEMENT

(1.) The Revision Petitioner filed O.S. No. 17 of 1995 in the Court of the Senior Civil Judge, Peddapalli against the respondent herein seeking partition of the suit schedule properties.

(2.) The suit claim was opposed by the defendant by filing a written statement. Issues were settled on 8-9-1996. After several adjournments at the request of the plaintiff/Revision Petitioner to produce evidence on his behalf, ultimately, the suit was posted to 8-3-2000. Even on that day, since the plaintiff was not present and no evidence was produced, the suit was dismissed for default. Thereafter, the plaintiff/Revision Petitioner filed two applications for restoration of the suit under Order 9 Rule 9 of CPC and the other to condone the delay in filing the said application. The Court below having condoned the delay of 22 days restored the suit subject to the condition that the evidence shall be produced by the plaintiff on 23-10-2002. However, the plaintiff/Revision petitioner failed to produce his evidence on 23-10-2002 and therefore the Court below dismissed the petition for restoration (I. A.No. 346 of 2000). Thereafter, the plaintiff/Revision petitioner filed I. A.No.672 of 2002 under Order 9 Rule 9 of CPC to restore I.A.No.346 of 2000. The said application was dismissed as not maintainable by order dated 6-10-2005. Aggrieved by the same, the plaintiff/petitioner preferred an appeal on the file of the District Judge, Karimnagar under Order 41 of CPC and since there was delay of 47 days in filing the said appeal he also filed I.A. No. 19 of 2006 under Order 41 Rule 3-A of CPC to condone the delay.

(3.) In the affidavit filed in support of the application, it is stated that since he was suffering from high fever and was under medical treatment the appeal could not be preferred within the limitation. The said application was opposed by the respondent stating that the plea of the petitioner/plaintiff that he was unwell was false and as a matter of fact he was very much present before the Court of Judicial Magistrate of First Class, Sulthanabad on 13-9-2005, 4-10-2005, 17-10-2005, 18-10-2005, 24-10-2005, 7-11-2005, 8-11-2005, 14-11-2005, 21-11-2005 and 25-11-2005. The Court below having heard both the parties and having perused the certified copy of the docket order passed by the learned Judicial Magistrate of First Class, Sulthanabad was satisfied that the explanation offered by the petitioner that he was unwell was incorrect and accordingly declined to condone the delay. The said order dated 6-9-2006 is under challenge in this Civil Revision Petition.