THE HONOURABLE SRI JUSTICE A.GOPAL REDDY CRP No.551/2011 Date of Order:12-8-2011 Between: 1.P. Ravi Kumar and others ..Petitioners and 1. P.Shanti Kumari and another ..Respondents The Court made the following :: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY CRP No.551/2011 Oral order: The petitioners herein who are defendants 1 to 3 in OS No.613/2004 filed an appeal against the judgment and decree dt.2-3-2009 passed in OS No.613/2004 on the file of V Additional Senior Civil Judge (FTC) at Vijayawada, decreeing the suit filed by the first respondent herein who is plaintiff in OS No.613/2004 for declaration that she is the absolute owner of the plaint schedule property and for possession of the same and for recovery of mesne profits, before II Additional District Judge, Vijayawada. As there is a delay of 242 days in filing the said appeal, the petitioners/appellants filed IA No.343/2010 stating that the first petitioner/1st appellant was suffering from poliomyelitis with LVH + and CAD with LVEF 50% and associated diabetic mellitus with abnormal holster testing; that from 1st June, 2009 he took treatment in a private hospital and from June, 2009 to November, 2009 he took treatment in Railway Hospital and thereafter, he was bed ridden and due to that he could not file the above appeal. To substantiate the grounds raised in the petition, necessary certificates were filed. Learned District Judge dismissed the petition, in the absence of the petitioners, holding that delay has not been properly explained and reasons stated by the petitioners are not satisfactory and convincing. Aggrieved by the same, the present revision petition is filed. The impugned order passed is not on merits, but the lower appellate court perused the medical certificates, in which it was clearly mentioned the date of admission, date of discharge and the period of treatment and found that the reasons stated by the petitioners are not satisfactory and convincing. Even if the merits were discussed, the fact remains neither the counsel for the petitioner heard nor petitioners present. In such circumstances, normally, the petitioners should have moved the learned District Judge for setting aside the ex parte order and instead of moving the District Judge he filed the present revision petition. In that view of the matter, directing the petitioners to file an application before the lower appellate court will unnecessarily cause delay and since the appeal itself is also filed on behalf of the minor petitioners 2 and 3, justice would be met if the petitioners should be given an opportunity to explain the delay. Sri V.S.R. Anjaneyulu, learned counsel for the first respondent/plaintiff brought to my notice the undertaking dt.27-1- 2010 given by the first petitioner in EP No.98/2009 in OS No.613/2004 requesting 30 days time for vacating the plaint schedule property and handover vacant possession pursuant to the decree passed in OS lNo.613/2004. He further submitted that after filing undertaking, the present appeal has been preferred by the petitioners on 2-2-2010. Whether undertaking dt. 27-1-2010 given by the first petitioner itself is entitled the petitioners to condone the delay or not can be gone into by II Additional District Judge, Vijayawada. In view of the same, the impugned order passed by the lower appellate court is set aside and IA No.343/2010 on the file of II Additional District Judge, Vijayawada is restored to its original file on payment of costs of Rs.1000/- to the A.P. State Legal Services Authority within two (2) weeks from the date of receipt of a copy of the order. In default, the petition shall stand dismissed. On such restoration, the lower appellate court shall post IA No.343/2010 for hearing on 5-9-2011 and dispose of the same without any further delay. In the mean while, counter by the respondent/plaintiff, if any. The Civil Revision Petition is accordingly allowed. _______________ A.GOPAL REDDY, J. Dt.12-8-2011 kmr