HONOURABLE SRI JUSTICE G.CHANDRAIAH CIVIL REVISION PETITION No.2440 OF 2009 Dated 27th August, 2009 Between: Kalapala Narayana. ….Petitioner. And: Garlapati Sita Maha Lakshmi. …Respondent. HONOURABLE SRI JUSTICE G.CHANDRAIAH CIVIL REVISION PETITION No.2440 OF 2009 ORDER: This C.R.P. is filed by the petitioner aggrieved by the order dated 2nd February, 2009 passed by the learned Additional Senior Civil Judge, Eluru in I.A.No.916 of 2008 in O.S.No.339 of 2007. Petitioner herein is the defendant and respondent herein is the plaintiff. The status of the parties will hereinafter be referred to as arrayed before the Court below for the sake of convenience. It is not in dispute that the plaintiff had filed a suit in O.S. No.339 of 2007 before the Court below for recovery of possession of the plaint schedule property. Soon after receiving the summons, he entrusted the matter to his elder son Koteswara Rao who obtained his thumb impression on some papers representing that he would engage an advocate at Eluru. He was under the bonafide impression that his son was looking after the matter on his behalf. Subsequently, some disputes arose between the family members and in that dispute, his eldest son suspected him that he was supporting other members. While so, in the 1st week of June, 2008, the defendant requested his son to return the papers containing his thumb impressions and furnish details of the stage of the suit. But, he refused to return the same and proclaimed that he did not engage any advocate on behalf of the defendant. On enquiry, the defendant came to know that he was set exparte on 15-11-2007 and an expate decree was passed on 14.12.2007. In this view of the matter, he sought to condone the delay of 148 days in filling the petition under Order 9 Rule 13 C.P.C. The Court below having observed that since the defendant did not adduce any oral or documentary evidence to prove that he entrusted the matter to his son Koteswararao nor examined his son to prove that he entrusted the matter to him nor even he did choose to come into the witness box to explain the delay, dismissed the application. Aggrieved by the same, the present revision has been preferred by the defendant. Heard the learned counsel. It is contended by the learned counsel for the petitioner- defendant that the son of the defendant played fraud on behalf of the defendant and intentionally, did not engage an advocate and hence, the Court cannot expect the evidence of his son on his behalf. Learned counsel for the defendant also relied on decisions of the apex Court reported in COLLECTOR, LAND ACQUISITION, ANANTNAG AND ANOTHER VS. MST. KATIJI AND OTHERS ([1]) , and N. BALAKRISHNAN vs. M. KRISHNAMURTHY ([2]) to support his case. Hence, the Court below is not justified in dismissing the application and hence, the order impugned is liable to be set aside allowing the revision. On the other hand, it is contended by the learned counsel for the respondent-plaintiff that the defendant, even though entrusted the matter to his son, did not enquire about the stage of the matter and hence, order impugned is justified and it does not warrant any interference and as such, this revision is liable to be dismissed. I have perused the material available on record. In the instant case, the defendant who is aged about 80 had entrusted the matter to his son believing his attendance in the matter but according to him, his son played a fraud. Hence, I am of the view that the Court below ought to have condoned the delay and therefore, the Court below is not justified in dismissing the application and the order impugned is liable to be set aside. In the facts and circumstances of the case, I feel that the issue involved in the lis shall be adjudicated on its own merits, but not on mere technicalities, in order to avoid the multiplicity of the proceedings of this nature. Therefore, it is a fit case wherein an opportunity can be afforded to the defendant to prosecute his case. In this view of the matter, this Civil Revision Petition is allowed setting aside the order impugned. No costs. ________________________ Justice G.CHANDRAIAH Dated 27th August, 2009. Dvs HONOURABLE SRI JUSTICE G.CHANDRAIAH CIVIL REVISION PETITION No.2440 OF 2009 Dated 27th August, 2009 [1] (1987) 2 SCC 107 [2] (1998) 7 SCC 123