MOVVA ANJAMMA Vs. ABHINENI ANASUYA

JUDGEMENT

(1.) This Civil Revision Petition arises out of an application for the condonation of delay of one year, one month and ten days in filing the application for setting aside the order dated 14-9-992 dismissing the suit for default.

(2.) This matter has had a long and checkered history. The parties are closelyrelated. The petitioners and the respondents are sisters. The two petitioners herein and the 2nd respondent filed the suit O.S. No. 889 of 1981 on the file of the Court of the V Additional Judge, City Civil Court, Hyderabad against the 1st respondent herein for specific performance of an agreement of sale dated 15-10-1965 alleged to have been executed by the 1st respondent in their favour agreeing to sell the suit schedule property for a total consideration of Rs- 21,330/-. The suit was filed on the allegation that a sum of Rs.15,000/- was paid as advance on the date of agreement and that subsequently, the balance of sale consideration of Rs. 6,330/- was also paid on 21-3-1975 and that the 1st respondent failed to execute the sale deed. So, the suit was filed on 17-8-1981. The 1st respondent-sole defendant in the suit appeared through her General Power of Attorney and filed a written statement conceding the suit claim. Thereupon, the suit was decreed on 27-11-1981. But, (C.V.N. SASTRI, J.) subsequently, the 1 st respondent filed an application being I. A.No. 237 of 1982 to set aside the decree on the ground that the same was obtained by fraud and in collusion with her General Power of Attorney- The said application was dismissed for default on 1-4-1984, but subsequently, it was restored and ultimately, it was allowed on 21-3-1991 and the decree was set aside. The 1st respondent thereafter filed her written statement afresh. The suit has been subsequently transferred to the Court of the Principal Subordinate Judge, Rangareddy District and re-numbered as O.S.No. 144 of 1991. The suit was dismissed for default on 14-9-1992, as the plaintiffs failed to appear when the suit was posted for trial. On 14-6-1993, an application to set aside the order of dismissal for default and for restoration of the suit, was filed by all the three plaintiffs. In support of the said application, an affidavit of the 1st plaintiff, i.e., the 1st petitioner herein, was filed stating that the plaintiffs had no intimation or communication from their Counsel regarding the developments in the suit after the decree was set aside by order dated 23-1-1991 and they could not also contact their Counsel as they were ladies stationed at far off places and for want of proper communication, the plaintiffs could not be present on the date when the suit was posted for evidence on behalf of the plaintiffs. The said application appears to have been returned by the Office with the objection that a separate application for condonation of delay should be filed. Thereupon, the instant application i.e., I.A.No. 593 of 1995, for condonation of delay was filed on 13-12-1993. The number is, however, wrongly mentioned in the impugned order as I. A.No. 2505 of 1993, which in fact is the number of the main application for restoration of the suit. In support of the application for condonation of delay, the affidavit of the Counsel for the plaintiffs on record was filed stating that the application for restoration of the suit was filed on 14-6-1993, but the said application was reported to have been misplaced in the Office of the Honourable Court, that the petitioners are, therefore, obliged to file a duplicate on 24-11-1993 and the same was returned by the Office on 4-12-1993 with an objection to file a petition to condone delay within seven days and accordingly the application for condonation of delay is being filed, that the delay is neither wilful nor deliberate but due to the circumstances beyond the control of the petitioners and as such the same deserves to be condoned in the interest of justice. It may be mentioned that the actual delay in filing the application for restoration of the suit was 243 days. However, by the date of filing of the application for condonation of delay, it came to one year, one month and ten days and it was, therefore, prayed to condone the entire delay of one year, one month and ten days and to set aside the order dismissing the suit for default and to restore the same.

(3.) A counter-affidavit was filed on behalf of the 1st respondent opposing the application for condonation of delay disputing the allegation that the plaintiffs had no intimation from their Counsel and stating that the matter was coming up for trial since 24-9-1991 and thereafter it was adjourned several times as the plaintiffs did not get ready for trial and finally the matter was adjurned to 14-9-1992 by awarding costs of Rs. 100/- and even by that date as the plaintiffs failed to turn up or pay the costs awarded the suit was dismissed for default on 14-9-1992. It is also stated that the plaintiffs have virtually abandoned the suit as they thought that they would not succeed in the suit since the suit agreement is a fabricated document and purposely they gave up their interest and there are no valid grounds whatsoever for condonation of the inordinate delay.