M.JAYANTHI Vs. B.ARJUN REDDY

JUDGEMENT

(1.) Aggrieved by the order dtd. 4/12/2020 passed in I.A.No.1895 of 2019 in ASSR No.9285 of 2019 on the file of the learned XV Additional District Judge, Ranga Reddy District at Kukatpally, the petitioner herein preferred this revision petition.

(2.) The petitioner is the defendant and the respondents herein are the plaintiffs. The petitioner herein filed an application under Order 41 Rule 3 CPC before the trial Court seeking to condone the delay of 779 days in filing the appeal against the judgment and decree dtd. 13/10/2017 passed in O.S.No.491 of 2003 on the file of the learned I Additional Senior Civil Judge, Ranga Reddy District. The trial Court after considering the arguments of both the counsel at length, dismissed the application. Aggrieved by the same the petitioner herein preferred this revision.

(3.) Learned counsel for the petitioner would contend that the petitioner herein is the defendant in the suit filed by B.Arjun Reddy in O.S.No.491 of 2003 for specific performance. During the pendency of the proceedings in the suit B.Arjun Reddy died and his legal representatives-wife and children were brought on record as Plaintiff Nos.2 to 6 in the suit and finally the suit was decreed in their favour. Learned counsel for the petitioner would also submit that the petitioner herein is not aware of the subsequent suit proceedings after it was dismissed for default on 13/4/2011. Her Advocate on record informed her that there is no chance of restoration without personal notice to her and gave bundle along with no objection. Then ultimately the suit is restored to its file on 7/1/2016. After restoration of the suit, a memo was filed by the counsel appearing for the petitioner herein on 18/2/2016 stating that the petitioner has taken away the bundle and also obtained no objection vakalat from him and as such he cannot represent the matter on her behalf. Learned counsel would also submit that it is for the trial Court to order notice but the plaintiff and his counsel played fraud on the trial Court by filing a memo dtd. 15/6/2017 stating that notice was served upon her counsel and managed the proceedings behind her back. He would also assert that as per Article 123 of the Limitation Act, 1963, limitation to file an appeal starts from the date of knowledge of the decree passed ex parte and as per the explanation specified therein the substituted service under Order 5 Rule 20 CPC shall not be deemed to be due service. As the petitioner got knowledge of the dismissal of the ex parte suit only on 28/8/2019, there was no delay on her part. Even the agreement of sale dtd. 21/10/1997 there is a specific clause to the effect that the sale deed shall be executed within ten (10) months from the date of agreement in favour of the purchaser and time is essence of the contract and as such the suit is barred by limitation. He would also submit that in spite of said clause the balance sale consideration allegedly paid after three years on 15/5/2001 but the stamp papers were purchased on 27/1/1999. Plaintiff in the suit died on 11/10/2010 but the suit was dragged till 7/1/2016 and the trial Court ordered to serve the copy of the chief evidence affidavit of PW.2-GPA holder on 27/4/2017. Memo was filed on 15/6/2017 stating that the notice was served on the defendant's counsel and it is contrary to the docket order dtd. 18/2/2016. Learned counsel would also argue that the trial Court failed to consider the certified copy of the docket order dtd. 28/8/2019 passed in E.P.No.79 of 2017 and the extract of Article 123 of the Limitation Act, 1963 and its explanation which were filed along with the memo dtd. 9/11/2020 and the case law cited by him was also not considered by the trial Court. He would also argue that the trial Court failed to observe the patent fraud and forgery caused by the respondent plaintiff in manipulating the agreement of sale and thus requested the Court to call for the records in I.A.No.1895 of 2019 in ASSR.No.9285 of 2019 and to set aside the said order.