HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HONOURABLE SRI JUSTICE V.ESWARAIAH CIVIL REVISION PETITION Nos. 3637 & 4165 OF 2008 Friday, the Third Day of December, Two Thousand and Ten Between Boyina Nageswara Rao Petitioner in CRP No. 3637 of 2008 Boyina Surya Rao Petitioner in CRP No. 4165 of 2008 AND Smt. Pulagam Vimala Respondent in both the CRPs. COMMON ORDER: Heard learned counsel for the petitioners and the learned counsel for the respondent. The petitioners in both the Civil Revision Petitions are the defendants in the suits filed by the same plaintiff/respondent herein. The suits O.S. Nos. 34 and 35 of 2001 are filed by the respondent herein for specific performance of Agreement of sale dated 6.5.1998. It is stated that after engaging an advocate, the suits were dismissed for default by order dated 10.2.2003. According to the respondent/plaintiff, she was not informed about the dismissal of the suits by her advocate and after filing of the suits, her husband fell sick with the disease of pituitary adenomy and he was joined in the Nizam’s Institute of Medical Sciences, Hyderabad and after a prolong treatment, he survived and that during the treatment of her husband, she accompanied him at Hyderabad. It is also stated that she was out of village for about 2½ years and could not receive any letters from her advocate and that her non-appearance on 10.2.2003 when the suit was dismissed for default is not willful or intentional. It is further stated that for the aforesaid reason, she could not file application under Order IX Rule 9 C.P.C. to set aside the default order and for restoration of the suit and in that process, there occurred a delay of 845 days in filing the application under Order IX Rule 9 CPC. Counter has been filed opposing the applications seeking to condone the delay, narrating that after imposing costs only the suits were posted finally on 10.2.2003, on which date the plaintiff was absent and, therefore, the suits were dismissed for default. It is stated that the delay is not properly explained. The court below also examined the respondent – plaintiff as well as her husband as PWs 1 and 2. The respondent – plaintiff deposed before the court below that due to the illness of her husband, he was admitted in the Nizam’s Institute of Medical Sciences, Hyderabad, and that they have shifted from their village to Hyderabad, for the purpose of his treatment for a long time. PW-2, who is husband of the plaintiff also stated that he has suffered with brain tumor and was hospitalized and in that connection they were out of the village for 2½ years. Copies of the medical certificates were also filed along with the petitions, though the same were not marked for want of the originals. As per the oral and documentary evidence, they were out of Visakhapatnam, when the suits were dismissed for default. According to the petitioner, PW-2 lost his power to remember due to brain tumor. No rebuttal evidence has been adduced except advancing arguments on behalf of the defendants. Having regard to the facts and circumstances of the case, the court below allowed the I.As. condoning the delay on payment of costs of Rs.500/-. Aggrieved by the same, these two Civil Revision Petitions are filed. Admittedly, the suits were dismissed for default for the non-appearance of the plaintiff on 10.2.2003. As the plaintiff explained the delay in filing the applications under Order IX Rule 9 CPC to set aside the default order, by examining herself and also her husband, about the treatment given to her husband in the Nizam’s Institute of Medical Sciences, Hyderabad for a prolong period and having regard to the facts and circumstances of the case this court is of the opinion that no prejudice will be caused if the delay is condoned more particularly when it is the case of the plaintiff that the advocate appearing on her behalf has not informed about the date of dismissal. However, as there is a long delay, I am of the opinion that the court below ought to have awarded substantial amount towards costs. Accordingly, the costs of Rs.500/- is increased to Rs.2,500/- in each case, payable to the defendant before the court below within a period of three weeks from the date of receipt of this order. The Civil Revision Petitions are accordingly dismissed, however, increasing the costs, as aforesaid. ___________________ Justice V.Eswaraiah December 3, 2010 MAS