THE HONOURABLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETTION No.3404 of 2008 Date of Order:04.03.2011 Between: Dutta Seetha Mahalakshmamma and others ..Petitioners and Y.Bala Ramaiah and others ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No.3404 of 2008 ORDER :- Petitioners/plaintiffs filed this revision under Article 226 of the Constitution aggrieved by the order of the VII Additional District and Sessions Judge, Vijayawada in allowing I.A.No.26 of 2005 in O.S.No.39 of 2005 filed to reject the suit filed by the petitioners. The respondents/defendants filed the said I.A. stating that when the suit filed by petitioner Nos.1, 13 and 18 who are respondent Nos.1, 13 and 18 in I.A.No.26 of 2005 for specific performance of agreement of sale, dated 21.06.1970, was dismissed, they unsuccessfully carried the matter in A.S.No.919 of 1997 before the High Court and the Special Leave Petition (Civil) No.11317 of 2004 before the Hon’ble Supreme Court which was dismissed on 06.07.2004. Hence, the present suit for declaration of title claiming to be entered into possession pursuant to the agreement of sale is not maintainable and barred by the principles of res judicata and the same has to be rejected. The lower court allowed the I.A. holding that in spite of giving number of adjournments, the petitioners/plaintiffs have not filed their counter, which clearly shows that they have no objection for rejecting the plaint and accordingly allowed the I.A. Learned counsel for the petitioners pointed out that a counter was filed in the I.A. but it was not taken into consideration in allowing the I.A. Learned counsel for the respondents has not disputed the factum of filing the counter, but contended that no tenable objection has been raised except stating that triable issues in the plaint cannot be rejected. Therefore, the lower court has not committed any illegality in allowing the I.A. Admittedly, the impugned order has been passed by the lower court observing that no counter is filed which factually is incorrect. In view of the same, it is not necessary for this court to go into the merits of the case to sustain the rejection order. Since the impugned order passed is error apparent on the face of the record, the same is set aside and the matter is remitted to the lower court to dispose of the I.A. taking into consideration of the counter filed by the petitioners after giving opportunity to the parties. If the parties fail to present and proceed with their respective pleas, it is always open for the lower court to pass orders by considering the material available on record within four weeks from the date of receipt of a copy of this order. The Civil Revision Petition is, accordingly, disposed of. There shall be no order as to costs. ____________________ A. GOPAL REDDY, J March 4, 2011 Lmv