K SRINIVAS Vs. K GOVIND

JUDGEMENT

(1.) THE civil revision petition is directed against the order of the I Additional chief Judge, City Civil Court, secunderabad, 2009 (3)FR-F-46 dated 19. 1. 2009 in I. A. No. 1978 of 2008 in assr No. 4889 of 2008.

(2.) THE revision petitioner filed I. A. No. 1978 of 2008 in the unregistered appeal for condonation of delay of 467 days in filing the appeal against the ex parte preliminary decree in OS No. 369 of 2005 on the file of III Senior Civil Judge, City civil Court, Secunderabad, dated 21. 12. 2006. The petitioner claimed that his father died on 26. 2. 2006 leaving his sons as his legal representatives including the plaintiff and the other defendants in the suit and the other brothers colluded to keep the revision petitioner in dark creating an impression that after the death of the father, the suit was withdrawn. The revision petitioner was suffering from heart problem and high blood pressure and was totally under bed rest. In the meanwhile, he was set ex parte in the suit and an ex parte preliminary decree was passed on 21. 12. 2006. It is only on receiving the notice of final decree proceedings that he came to know about the ex parte preliminary decree and then, he filed I. A. No. 115 of 2007 (2008?) to condone the delay of 405 days and LA. No. l16 of 2008 to set aside the ex parte preliminary decree. Both the petitions were dismissed, which was confirmed by the High Court and hence, he had to file the appeal along with a petition for condonation of delay.

(3.) THIS claim of the revision petitioner was contested by the plaintiff contending that the very affidavit of the revision petitioner shows that he was acquainted with the case, but did not concentrate on the same and the plaintiff never represented or created an impression that he will withdraw the suit. The delay was not at all explained by the revision petitioner and the alleged ill-health of the revision petitioner is false. In fact, the revision petitioner engaged an advocate and took time for filing written statement before being set ex parte on 15. 11. 2005. No attempt was made to get the ex partc order set aside during the pendency of the suit till 21. 12. 2006. The revision petitioner also participated in I. A. No. 1308 of 2007 for appointment of commissioner much prior to his filing a petition to set aside the ex parte preliminary decree. In fact, the High Court in its order observed about these facts and the conclusions in the proceedings arising out of the same litigation estop the revision petitioner from raising the issue again in this petition. The plaintiff, therefore, desired that in the absence of any sufficient cause for condonation of the delay, the revision petitioner has to fail.