HON'BLE SRI JUSTICE R. SUBHASH REDDY CIVIL REVISION PETITION No.5169 of 2009 Date : 01.02.2011 Between : Singaraju Ramanaiah. …..Petitioner And Sangam Venkaiah. …..Respondent HON'BLE SRI JUSTICE R. SUBHASH REDDY CIVIL REVISION PETITION No.5169 of 2009 ORDER : This civil revision petition under Article 227 of Constitution of India is filed, aggrieved by the order, dated 17.09.2009, passed by the learned First Additional Junior Civil Judge, Nellore, in I.A.No.182 of 2007 in O.S.No.856 of 1983. The petitioner is plaintiff in the suit in O.S.No.856 of 1983, which was initially filed for injunction simpliciter, and subsequently, by way of amendment, declaration of title was also sought for. After the full-pledged trial, the suit was dismissed and the said finding was confirmed in 1st appeal in A.S.No.96 of 1993 on the file of the learned First Additional District Judge, Nellore. Thereafter, the petitioner preferred Second Appeal before this Court in S.A.No.207 of 2001. The said Second Appeal was allowed and the matter was remanded to the trial Court for fresh disposal. After the matter was remanded, notices were issued to the counsel for the parties, by fixing the dates for hearing. When notice was served, the counsel for petitioner has filed a Memo on 14.11.2006, seeking to send notice to the party personally. Thereafter, the matter was posted to 4th December 2006 while ordering notice to the petitioner, and subsequently, posted to 11.12.2006. On the ground that nobody has appeared on the said date, the suit was dismissed for non-prosecution. Subsequently, the petitioner herein has filed the present application in I.A.No.182 of 2007, seeking to condone the delay of 32 days in filing the petition under Order 9 Rule 9 CPC, for restoring the suit. It was the case of the petitioner that he was not served with any notice after the Second Appeal was allowed by this Court and he was under the impression that he will be given notice before taking up the matter. Further, pleading that the suit was dismissed without issuing notice to him and that for want of knowledge, he could not file the application to restore the suit within the specified time, prayed for restoration of suit. The Court below, by impugned order, has rejected the application on the ground that sufficient reasons are not shown to condone the delay and further observed that there was a delay of 34 days but not 32 days as pleaded by the petitioner and that such delay was not properly explained. Heard learned counsel for the parties. It is to be noticed that the suit was of the year 1983 and it was reopened in 2006 pursuant to the remand order passed by this Court in S.A.No.207 of 2001. When notices were served on the counsel for the parties, in view of paucity of time, the counsel for petitioner has filed a memo, seeking to send notice directly to the party. Based on the memo filed by the learned counsel for petitioner, the trial Court also issued notice to the petitioner, but it appears, without even verifying whether such notice is served on the petitioner or not, has dismissed the suit for default, by a judgment and decree, dated 11.12.2006. It is the specific case of the petitioner that he was not served with any notice, but inspite of the same, no finding was recorded in the order passed by the trial Court, with regard to service of notice. When an application is filed to condone the delay of 32 days and when such application is numbered, in the absence of any dispute on number of days by the respondent in the counter affidavit filed before the trial Court, the Court below has also erred in recording a finding that there is a delay of 34 days. As the notice was not served on the petitioner, and as there is no finding in the order passed by the Court below that the notice of hearing was served on the petitioner, and further, in view of the reasons stated in the affidavit filed in I.A.No.182 of 2007, this Court is of the view that the petitioner has shown sufficient reasons to condone the delay of 32 days in filing the petition under Order 9 Rule 9 CPC, for restoring the suit. The trial Court has failed to exercise the jurisdiction vested in it, in proper perspective. As much as the suit is revived for fresh adjudication pursuant to the order passed by this Court in the Second Appeal, and as the suit is for declaration of title and injunction, this Court is of the opinion that it is a fit case to give an opportunity to the petitioner by condoning the delay. For the aforesaid reasons, this revision petition is allowed and the order, dated 17.09.2009, passed by the learned First Additional Junior Civil Judge, Nellore, in I.A.No.182 of 2007 in O.S.No.856 of 1983, is set aside. Consequently, the said I.A. stands allowed. As much as the suit is of the year 1983, the Court below is directed to dispose it of as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order. No costs. ______________________ 1st February 2011 R. SUBHASH REDDY, J ajr