IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY FIFTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.552 of 2010 Between: Dubbaka Ram Reddy and others .. Petitioners AND Dubbaka Lingamma and others .. Respondents ORDER: The civil revision petition is directed against the order in I.A. No.3010 of 2008 in unregistered appeal suit on the file of the Principal District Judge’s Court at Nalgonda, dated 24-11-2009. The petitioner in I.A. No.3010 of 2008 was the plaintiff in O.S. No.162 of 2005 on the file of the Senior Civil Judge’s Court, Nalgonda for partition and separate possession of the plaintiff’s 5/27th share in the plaint A and B schedule properties. That suit was dismissed by the trial Court on 11-08-2008. The plaintiff filed an appeal against the said judgment and decree along with I.A. No.3010 of 2008 stating that after the suit was reserved for judgment, he came to know about passing of the judgment and decree only on 29-09-2008, on which he instructed his counsel to obtain certified copies of the judgment and decree to file an appeal. The copies were made ready on 28-11-2008 after filing of copy application with a delay of 50 days and on his contacting the counsel after 8 days after 28-11-2008, he came to know about the readiness of the certified copies. The plaintiff, hence, sought for condonation of delay of 88 days in total in filing the appeal under Section 5 of the Limitation Act read with Order XLI Rule 3-A of the Code of Civil Procedure, 1908. The request was resisted by the 2nd respondent herein by filing a counter-affidavit contending that the plaintiff had to show why he could not contact his advocate and what reasons prevented him from filing a copy application within time. As he was negligent and did not explain the day to day delay, the delay cannot be condoned. Except respondents 2, 9 and 10, the other respondents did not oppose the application and they remained ex parte. The impugned order opined that as there was no plea that the advocate for the plaintiff was not served with notice of pronouncement of the judgment and as the plaintiff did not explain why he did not contact his advocate or why his advocate did not file a copy application within time or why the advocate did not inform him about the result of the judgment, the existence of any sufficient cause for condoning the delay is lacking and hence, the petition was dismissed without costs. The revision petitioner/plaintiff died after filing of the civil revision petition and his legal representatives were brought on record as revision petitioners 2 to 4 as per orders, dated 28-04- 2010 in C.M.P. No.2107 of 2010. Respondents 2, 9 and 10 filed a counter-affidavit herein also again contending that the delay was not explained in any manner and the absence of diligence in prosecuting the case should result in rejection of the revision. Sri M. Venkatram Reddy, learned counsel for revision petitioners 2 to 4, Smt. G. Neeraja Reddy, learned counsel for the 6th respondent and Sri V. Ramesh Reddy, learned counsel for the 3rd respondent are heard and the counter-affidavit filed on behalf of respondents 2, 9 and 10 by Sri D. Goverdhana Chary is perused. The point for consideration is whether the delay in filing the appeal deserves to be condoned ? Point: Sri M. Venkatram Reddy, learned counsel for revision petitioners 2 to 4 relied on Nagulapu Raju v. Tirupathi[1], wherein considering a similar situation, it was held that the rules of procedure are intended to advance the cause of substantial justice, but not to punish the parties for their technical lapses and that the existence of sufficient cause under Section 5 of the Limitation Act is always open to a liberal construction. It was also observed that any inconvenience caused to the opposite party can be compensated by appropriate terms and such conditions should be imposed as would off set the inconvenience, instead of refusing to determine the dispute on merits in accordance with law. In construing the truth or otherwise of the grounds raised in support of the request for condonation of delay, the Court will not adopt a too rigid and technical approach, but will go by broad human probabilities arising out of the facts and circumstances, as is mandatorily done in every civil cause and not insist on any strict proof beyond reasonable doubt. In the present case, it is seen from the judgment and decree in O.S. No.162 of 2005 that the learned advocate for the plaintiff was recorded to have been present at the time of hearing of the suit on merits and disposing it of by a judgment and decree dated 11-08-2008. The affidavit on oath by the deceased plaintiff showed that the learned advocate obviously did not inform him about the result of the judgment and in the face of his statement on oath about being ignorant of the judgment and decree and in the absence of any contrary material to attribute any knowledge to the plaintiff before hand, his claims about the absence of any communication about the judgment and decree from his counsel need not be suspected or rejected. The affidavit of the plaintiff also explained further the small delays that occurred in making a copy application and in receiving the ready copies of the judgment and decree. The total delay of 88 days in filing the appeal is not unduly long or inexcusable under the circumstances and as the rights involved in the suit for partition and separate possession are in respect of the properties worth more than Rs.10,00,000/-, the rights of the parties need not be jeopardized even if the deceased plaintiff was not as vigilant as he should have been. The defaulting plaintiff also left this world later during the pendency of the revision leaving his wife and two daughters/revision petitioners 2 to 4, whose rights and interests, if any, in the suit properties need not be negatived due to any lapses by the deceased plaintiff. Under the circumstances, the delay can be condoned by imposition of reasonable terms permitting determination on merits of the claim for partition. The contesting respondents herein are represented by three learned counsel and if the revision petitioners were to be made liable to pay costs of Rs.1,000/- each to the learned counsel to compensate the inconvenience caused to the respective contesting respondents by the delay, the same will meet the ends of justice, while the affidavit in support of the application cannot be altogether dismissed as not disclosing any sufficient cause. Therefore, the order, dated 24-11-2009 in I.A. No.3010 of 2008 in unregistered appeal suit on the file of the Principal District Judge’s Court, Nalgonda will be set aside and the said I.A. No.3010 of 2008 will be allowed on payment of costs of Rs.1,000/- each to the learned counsel for respondent No.3, respondent No.6 and respondents 2, 9 and 10 on or before 04-03-2011. In default, the said application shall stand dismissed. The civil revision petition is ordered accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 25-02-2011 Svv [1] 2009 (6) ALT 408