THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.3300 of 2006 Dated:- 18th November, 2010 Between:- Vinnakota Subba Rao and another ..…Petitioners AND Thogati Krishnaveni and others …..Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.3300 of 2006 ORDER:- This Civil Revision Petition is directed against the judgment and order dated 18.04.2006 passed in I.A.No.320 of 2006 in un-registered Appeal by the District Judge, Guntur. 2. The facts that lead the petitioners to file this revision, in brief, are as follows:- Item Nos.1 and 2 of the plaint schedule properties were brought to sale in pursuance of decree in O.S.No.635 of 1969 on the file of the Junior Civil Judge, Guntur, and in the Court auction, the property was purchased by the first defendant in whose favour Sale Certificate was issued. The petitioners herein, who are brothers, claims to have purchased the said property from the first defendant in O.S.No.635 of 1969, i.e., Acs.0.81 cents of land each. The first respondent herein filed O.S.No.70 of 1990 on the file of the Senior Civil Judge, Narsaraopet, seeking declaration that the sale in favour of the petitioners’ is benami and for recovery of possession. The said suit was decreed. Then the petitioners herein preferred an appeal in A.S.No.219 of 2001 on the file of the IX Additional District Judge (Fast Track Court), Guntur. However, the said appeal was dismissed and a Second Appeal challenging the decree and judgment in A.S.No.219 of 2001 is pending before this Court. Meanwhile, an Advocate Commissioner was appointed by the Court below to determine the mesne profits. According to the learned counsel for the petitioners, they had engaged an advocate at Sattenapally to represent them and for sometime, he informed them about the proceedings of the case and they too participated in the enquiry, but later on, there was no communication from their advocate and only after receiving the summons, the petitioners’ had learnt that an amount of Rs.2,27,500/- was awarded towards mesne profits. One of the main contentions of the learned counsel for the petitioners’ is that petitioners 1 and 2 herein have purchased each Acs.0.81 cents of land, but the Court below passed a decree making them jointly and severally liable to pay the total mesne profits in respect of entire suit schedule property. It is also his case that the petitioners are uneducated, rustic and that the delay was not intentional and that they have fair chances to succeed in the appeal. 3. The Court below observed that the petitioners participated in the enquiry for mesne profits conducted by the Advocate Commissioner and that it was the duty of the petitioners’ to approach their advocate to know the result of the case and that now-a-days, many communication facilities are available and, therefore, the contention of the petitioners’ herein that they did not know about passing of decree in respect of mesne profits, till they received summons in the Execution Petition, cannot be accepted and that illiteracy of the petitioners cannot be a ground for condoning the delay in preferring the appeal. 4. Learned counsel for the petitioners herein further submitted that that the Court below, without considering the material on record, simply accepted the report of the Advocate Commissioner and determined the mesne profits. It is also vehemently submitted that had the Court below considered the entire material available on record, it would not have accepted the report of the Advocate Commissioner. 5. Per contra, learned counsel for the respondents vehemently submitted that ignorance, illiteracy etc., cannot be taken as grounds to condone delay. It is also submitted that there is nothing on record to show that the petitioners’ contacted their advocate to know about the result of the case or that there was no communication between them and their advocate. It is also contended that the petitioners’, only with an intention to delay the proceedings and to avoid payments’, have filed the appeal. 6. Having considered the above rival contentions, the only point that arises for consideration in this revision is whether the petitioners’ should be given an opportunity to contest the matter in the appeal. 7. Though illiteracy and ignorance cannot be taken as grounds to condone the delay, but however, it is not in dispute that the petitioners’ are rustic villagers. As far as the fact whether there was any communication to the petitioners’ from their advocate or whether the petitioners’ had evinced any interest to know about the result of the case for mesne profits enquiry is concerned, it appears that there are some laches on the part of the petitioners’. As rightly contended by the learned counsel for the respondents, it is the duty of the clients to approach their advocate to know about the result of the proceedings. However, there is nothing on record to show that the petitioners’ advocate had informed them about the result of the case or that they had any knowledge about passing of decree in the case for mesne profits enquiry. It also appears that when the petitioners’, though jointly purchased but each of them had separately purchased each Acs.0.81 cents of land only and in such circumstances, whether passing of decree making them jointly and severally liable is correct or not is the question to be considered by the lower appellate Court. 8. Having regard to the facts and circumstances of the case, I consider it just and reasonable to set aside the impugned order of the Court below and allow the application filed by the petitioners to condone the delay of 341 days on condition of the petitioners’ depositing 1/4th (one fourth) of the amount determined as mesne profits by the Court below in O.S.No.70 of 1990, within a period of sixty (60) days from today. 9. Subject to the above condition, the Civil Revision Petition is allowed without costs. ________________________ Justice B.Chandra Kumar 18th November, 2010 Bvv