HONOURABLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION No.5259 of 2010 Between: Rallapalli Tirumala Saialasutha … Petitioner and Mudili Koteswari … Respondent This court made the following: HONOURABLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION No. 5259 of 2010 ORDER:- This revision by the 2nd defendant is directed against the order of the I Additional Senior Civil Judge, Vijayawada in dismissing I.A.No.11 of 2009 in O.S.No.327 of 1997, dated 31.07.2010, filed for condoning the delay of 1412 days in filing the petition to set aside the ex parte decree for specific performance granted against her in the suit on 07.01.2005. Heard the learned counsel for the petitioner. In spite of service of notice, the respondent has not put up appearance. The reasons mentioned for condoning the delay in the affidavit are that the petitioner was added as the 2nd defendant in the suit as per the orders passed in I.A.No.358 of 1997 in O.S.No.327 of 1997, dated 21.09.1999. The suit was dismissed for default on 30.09.1999 for non- compliance of the orders, dated 21.09.1999, passed in I.A.No.358 of 1997 i.e., for not filing the neat copy and for carrying out the amendments in the suit. On dismissal of the suit, the plaintiff filed I.A.No.1053 of 2002 for restoration of the suit, which was allowed on 21.06.2004 and later it was adjourned for filing a neat copy of the plaint by carrying out the amendment and thereafter it was adjourned to 03.08.2004 for filing of the written statement. On 03.08.2004 and 09.08.2004, the matter was adjourned to file written statement on payment of costs. On 18.08.2004 as per the docket order, ‘the counsel for D2 reported that summons may be given to D2’ and accordingly, summons were ordered to defendant No.2 through court and registered post and the matter was posted to 16.09.2004. On 16.09.2004 and 06.10.2004, plaintiff paid the batta along with delay condonation petitions, which was allowed and the matter was adjourned to 02.11.2004 for appearance of D2. On the said date, steps were ordered for publication and, accordingly, published in Prajasakthi newspaper, Vijayawada and the matter was posted to 29.11.2004 and on the said date the petitioner was set ex parte. Later, an ex parte decree was passed on 17.01.2005. At the time of restoration of the suit, the petitioner was residing at Visakhapatnam as the 1st defendant was suffering with ill health and was bed ridden and he was the only person to take care also and none else to take care of him. He has no knowledge about the passing of ex parte decree. Accordingly prayed for condoning the delay. The lower court dismissed the said I.A. holding that the suit was dismissed for default and it was restored on 21.06.2004; that the advocate has not filed written statement in the suit and reported to the court that there were no instructions from the petitioner and requested to issue summons to her; that there is deliberate negligence on the part of the petitioner/2nd defendant to consult her advocate; that on making service of summons only, the petitioner was set ex parte; that there were no latches on the part of the petitioner to prosecute the case; and the delay cannot be condoned. The order passed by the lower court does not reveal as to whether any notice was sent to the petitioner before setting aside the ex parte decree. This court called for the records from the lower court. After going through the records, on dismissal of the suit on 30.09.1999 for default, the plaintiff filed I.A.No.1053 of 2002 on 14.12.2000 to restore the suit by setting aside the dismissal order and permit him to continue the suit proceedings. As per Article 122 of the Limitation Act, 1963 the restoration application has to be filed within 30 days from the date of dismissal. Admittedly, the restoration application has been filed on 14.12.2000 i.e., nearly after 14½ months without any application to condone the delay. The Court has not insisted for filing condoning delay petition and simply numbered the said I.A. in the year 2002. The I.A. filed also does not disclose any service of notice on the defendants or their counsel appearing for them in the lower court, which was numbered in the year 2002. The said I.A. was adjourned from time to time and ultimately it was allowed on taking out the summons by substituted service to the 2nd defendant on 21.06.2004, which resulted in passing an ex parte decree. The docket order also indicates that summons sent to the defendants were returned unserved on several occasions. Hence the respondent/plaintiff was permitted to take out notice in Prajasakthi newspaper, which is not a paper of vide circulation, to attribute the knowledge to the petitioner. In view of the same, the lower court failed to exercise the discretion in dismissing the I.A. instead of allowing the same by condoning the delay. The impugned order is, accordingly, set aside allowing the I.A. by condoning the delay. The Civil Revision Petition is allowed. There shall be no order as to costs. _____________________ A. GOPAL REDDY, J February 18, 2011 lmv