HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR Dated 19-4-2010 C.R.P. No.2806 of 2008 Between: K.Anasuya and others. …Petitioners. And: K.Kannaiah and others. …Respondents. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.2806 of 2008 ORDER: This revision is directed against the order of the learned Chief Judge, City Civil Court, Hyderabad rejecting the application in I.A.No.4242 of 2007 in ASSR No.29464 of 2006 whereby the petitioners’ application seeking to condone the delay of 350 days in filing the regular First Appeal stood dismissed. 2. The petitioners herein are the plaintiffs in O.S.No.1733 of 1995 on the file of the learned 2nd Senior Civil Judge, City Civil Court, Hyderabad. The said suit for partition was decreed by passing Preliminary Decree on 18-11-2005. Petitioners stated that 2nd petitioner was looking after the entire litigation and he did not keep the other petitioners informed about the Preliminary Decree and consequently, when the other petitioners came to know of the Preliminary Decree, they have filed an appeal on 19-12-2006 together with the application seeking condonation of the 350 days in filing the appeal. The said application was not opposed by the other defendants in the suit but only the defendant No.23 who claims to have purchased part of the plaint schedule property from the some owners, has contested by filing a detailed counter. Learned Chief Judge under his order dated 3-7-2008 found that there is no sufficient cause for condonation of delay and consequently, rejected the said application. Hence, this revision. 3. This Court while admitting the revision granted the interim suspension as prayed on 11-7-2008 and the said order operates as on today. 4. In this C.R.P., the other respondents who are defendants in the suit are served by substitute service but nobody appears opposing this revision. 5. Heard Smt. G.Jyothi Kiran learned counsel appearing for the petitioners and Mr. Subrahmanyam Kurella, learned counsel appearing for 23rd respondent. 6. While the learned counsel for the petitioners submits that there is a mistake or negligence on the part of the one of the petitioners which should not result in penalizing all the other petitioners-plaintiffs as their valuable right of appeal under Section 96 C.P.C. would stand denied to them. Learned counsel states that the only reason for condonation of delay was that the 2nd petitioner who was looking after the litigation on behalf of the petitioners-plaintiffs did not inform the other petitioners about passing of Preliminary Decree by the Court below and consequently, the appeal could not be filed on time. The said statement is contested by respondent No.23 who submits that the petitioners have knowledge of not only the preliminary decree but the final decree proceedings which are progressing before the trial Court. It is specifically alleged in their counter-affidavit that the petitioners have participated in the final decree proceedings by appearing before advocate Commissioner and participated in the final decree in I.A.No.196 of 2006 pending before the trial Court. When the said final decree proceedings are at the fag end of the appeal, the present revision has been activated and there are absolutely no bonafidies. 7. The record discloses that the appeal was filed on 19-12-2006 along with the application seeking condonation of delay. It may be true that the petitioners have participated in the final decree proceedings before the trial Court. However, the pendency of the appeal along with condonation delay petition from 19-12-2006 cannot be disputed. The affidavit filed in support of the petition for condonation of delay states that all the parties are closely related and petitioner No.2 was prosecuting the suit before the Court below and he failed to inform about the passing of the preliminary decree. No doubt, the Court below rejected the said condonation delay petition on the ground that the said petitioner No.2 is impleaded as petitioner-appellant now also and he being along with the appellants, petitioner No.2 cannot seek condonation of delay. The application for condonation is supported by an affidavit of one of the appellants i.e., appellant No.9. It is not unusual that in a suit for partition between the family members, one of them would be looking after the proceedings before the Court. It is however true that there are some latches on the part of the petitioners in not pursuing the proceedings after passing of the Preliminary Decree. However, right of appeal under Section 96 C.P.C., being valuable right, even if there is a delay in presentation of the appeal, the said right deserves to be protected, in the interest of justice, particularly, in suits for partition. 8. In the facts and circumstances of the case, I am of the opinion that liberal view is warranted and delay deserves to be condoned in the light of the fact that the other party respondents have not appeared and opposed this revision petition in spite of being served by substituted service. The only contest being on the part of Respondent No.23- purchaser of undivided share of land from some of the owners and in the absence of any contest from the owners, I am of the view that the delay ought to have been condoned and by now, the appeal itself would have been disposed of. Therefore, I am inclined to set a side the impugned order and allow the revision whereby I.A.No.4242 of 2007 in A.S.S.R.No.29464 of 2006 shall stand allowed subject to the condition of the petitioners depositing costs of Rs.5,000/- (Rupees five thousand only) to the credit of the suit, within a period of six weeks from today. On such deposit, the lower appellate Court shall number the appeal and shall issue notice to the respondents and hear and determine the appeal expeditiously. In default of compliance of the condition as above, I.A.No.4242 of 2007 shall stand dismissed. 9. Since the learned counsel for Respondent No.23 submits that the other respondents-defendants are not seriously contesting and may not choose to appear before the lower appellate Court and since the final decree proceedings are at the fag end, he requests that the appeal may be directed to be heard and disposed of on or before a specified time. 10. In the circumstances, therefore, the appellate Court shall hear and determine the appeal, preferably before Dasara Vacation, 2010. The costs deposited as per this order shall be credited to District Legal Services Authorities account. 11. Accordingly, the C.R.P. is allowed. No costs. _____________________________________ JUSTICE VILAS V. AFZULPURKAR Dated 19-4-2010 Note: Issue CC in one week. BO Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.2806 of 2008 Dated 19-4-2010