IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE SIXTEENTH DAY OF APRIL TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO. 5061 OF 2008 Between : Linga Maheshwar Rao .... PETITIONER A N D Uppala Rajyalakshmi and others. …RESPONDENTS THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION NO. 5061 OF 2008 ORDER: This Civil Revision Petition, under Section 115 of Code of Civil Procedure, 1908, (for short “C.P.C”.) is directed against the order, dated 10.09.2008 in I.A. No.567 of 2008 in I.A. No.626 of 2007 in I.A. No.39 of 1998 in O.S.No. 1262 of 1985, on the file of the I Senior Civil Judge, City Civil Court, Hyderabad, whereunder and whereby, the application filed to set aside the dismissal order, dated 18.4.2008 passed in I.A.No.626 of 2007, was dismissed. 2. The learned counsel for the revision petitioner contended that as the petitioner was suffering from fever, he could not attend the court on 18.04.2008, and that the counsel appearing for the petitioner was pursuing some other matter and therefore sufficient cause is shown for his absence on 18.04.2008, hence he prays to set aside the impugned order. 3. On the other hand, the learned counsel for the respondents contended that even if the petitioner and other legal representatives of the late Sitaramaiah come on record, it would not cause any loss or hardship to the petitioner, in view of the fact that the petitioner along with other legal representatives are entitled for one share and the remaining share was already allotted to Uppala Rajaya Lakshmi, and hence he prays to dismiss the revision petition. 4. No doubt the present petitioner said to be the legal representative of one Linga Sitaramaiah @ Sitaramulu. The said Sitaramaiah died on 25.02.1997. After his death, the other legal representatives of the late Sitaramaiah were brought on record as respondent Nos. 2 to 7 in I.A. 567 of 2008. But it is stated that the present petitioner, who is also one of the legal representatives of the late Sitaramaiah, was not brought on record. It is not the case of the petitioner that the first respondent deliberately did not bring the present petitioner as the legal representative of the late Sitaramaiah. As a matter of fact, one of the legal representatives of late Sitaramaiah by name Linga Vittal Rao, who was representing the case, filed affidavit both in final decree proceedings and in I.A.No.39 of 1998 filed to appoint advocate commissioner to divide the suit property by metes and bounds and I.A. No.40 of 1998 filed for appointment of advocate commissioner to take accounts. In those petitions, he did not mention about the present petitioner as the legal representative of the late Sitaramaiah. The rights of the parties have been determined by passing a preliminary decree on 06.09.1994, holding that Rajya Lakshmi, the plaintiff, is entitled to half share and the Sitaramaiah is entitled for the remaining half share. The said decree has become final. Thereafter the first respondent herein filed two applications viz. I.A. Nos.39 of 1998 and 40 of 1998 and after following due procedure the trial court allotted one share to Rajya lakshmi and the remaining share to the legal representatives of the late Sitaramaiah. The present petitioner does not have any independent right over the property and at best he can claim only a share in the property that may be allotted to late Sitramaiah. Therefore, even if the petitioner is not impleaded as a party in the final decree proceedings, that will not vitiate the final decree proceedings. 5. The learned counsel for the first respondent placed reliance on a decision reported in B.Ramachandra Reddy Vs. Nelli [1] wherein this court held thus : “He relied on Day a Ram V. Shyam Sundari, 1965 (1) SCR 231, where it is held that if after diligent and bona fide enquiry legal representatives of a deceased defendant or respondents are brought on record within time, there would be no abatement of the suit or appeal, even though some legal representatives, who remained unknown, were not impleaded, if the legal representatives who were impleaded sufficiently represent the estate of the deceased, and that a decision obtained against those legal representatives would bind the estate of the deceased”. 6. Similarly, the learned counsel for the first respondent relied upon a decision reported in Azeez Sait (Dead) By L.Rs. Vs. Aman Bai[2] wherein it is held thus: “The application for substitution was ordered by this Court on the basis of the averments made in the application and on the basis of the representation made by the counsel for the appellant on 17-9- 2003. Therefore, we hold that all the legal representatives mentioned in the application for substitution are aware of the proceedings and, therefore, it is up to them to engage or not to engage a counsel to argue the case to which they have knowledge. This apart, the estate of the deceased- appellant is also represented by all other legal representatives. It is the duty of the legal representatives who have knowledge about the pending proceedings in this Court to engage the counsel. When they fail in engaging the counsel in spite of the knowledge of the pendency of the appeal the said legal representative is responsible for his lapse. We, therefore, hold that this judgment of ours is binding on all parties to the proceedings including the seven legal representatives of Azeez Sait who died on 28.12.2001”. 7. From the above decisions, it is clear that though one of the legal representatives was not brought on record, the remaining legal representatives of the deceased, were already on record, then it is a sufficient compliance. Therefore, simply because, the petitioner was not impleaded by the respondent as legal heir of the late Sitaramaiah, it cannot be a ground to dismiss the suit especially in view of the fact that the petitioner, if at all is impleaded, is entitled only a share in the property that may be allotted to the late Sitaramaiah. 8. In any view of the matter, no proper explanation was given by the petitioner for his absence on 18.04.2008. The contention of the learned counsel for the petitioner is that the petitioner was suffering from fever and therefore he could not attend the court and the counsel appearing for the petitioner was engaged in the other court and therefore it is a sufficient cause. The petitioner has not filed any document to show that he was suffering from fever on 18.04.2008, which prevented him to attend the Court. Therefore, the petitioner has not come forward with proper explanation for his absence on the day when the case was dismissed for default. Therefore, there are no grounds to interfere with the same and the Civil Revision Petition is devoid of merit and is liable to be dismissed. 9. However, it is made clear that the petitioner, being the legal representative of the late Seetharamaiah, is entitled for a share in the property allotted to late Seetharamaiah. 10. The Civil Revision Petition is, accordingly, dismissed. No costs. _______________ K.C.BHANU. J APRIL 16, 2010. YVL [1] 2003-ALD-1-763 [2] 2003-CTC-4-376