IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE THIRTHIETH DAY OF JUNE TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.5996 of 2002 BETWEEN Prathapa Komuraiah and four others. ... PETITIONERS AND Prathapa Komuraiah (died) and seven others. ...RESPONDENTS Counsel for the Petitioners : MR. K. RANGA RAO Counsel for the Respondents: MR. B. NARASIMHA SARMA The Court made the following: ORDER: One P. Kannamma had filed a suit, for declaration of title and recovery of possession, being O.S.No.34 of 1996 before the Senior Civil Judge, Huzurabad. The said suit was dismissed in default on 23.09.1998 for non- payment of costs. The said original plaintiff did not take any steps for setting aside the said dismissal order and ultimately, the original plaintiff died on 15.01.2002. The petitioners herein claiming to be the legal representatives of the deceased plaintiff have come forward with the present application dated 26.07.2002 numbered as I.A.No.192 of 2002 seeking to set aside the order of dismissal for default on 23.09.1998 and for restoration of the suit. That application was opposed by the respondents on various grounds pointing out that on account of the death of the original plaintiff and for not taking steps against dismissal in default, the suit has already abated. It was also claimed that the original plaintiff as well as the present petitioners are aware of the litigation and the claim of the defendants as there has been exchange of caveats among them. The Court below under the impugned order dated 11.11.2002 dismissed I.A.No.192 of 2002 on the ground that the petitioners have to file an appropriate application under Order 22 Rule 4 of the Code of Civil Procedure, 1908 seeking to set aside the abatement as well as condonation of delay and cannot straightaway be permitted to come on record in the suit. That order is questioned in this revision. 2. Heard the learned counsel for the petitioners, who primarily submits that in view of the legal position declared by this Court in ANDARI GOVINDAIAH v. VEMULA VENKATAMMA (DIED)[1], the Court below was not right in thinking that filing of an application seeking condonation is mandatory even though the reasons for the delay were sufficiently explained in the affidavit. Learned counsel also states that the petitioners being unaware of the order of dismissal in default dated 23.09.1998, they could not come up with the present application earlier. He, therefore, seeks an opportunity to the petitioners to come on record and prosecute the suit. 3. The respondents though represented by the counsel, nobody has appeared on their behalf for the last three hearings. Even today nobody appears for them. 4. The suit is of the year 1996 and it was dismissed in default on 23.09.1998. The original plaintiff was alive till 15.01.2002 but no steps were taken by her for the restoration of the suit. It is, however, apparent that what the original plaintiff could not achieve, the present petitioners, as legal representatives of the original plaintiff, seek to achieve. It is, no doubt, true that in a given case where reasons for the delay are sufficiently explained in the affidavit, separate application for condonation may not be insisted upon and as such, ignoring rejection of the petitioners’ application on that part of the reasoning of the Court below also, I do not find any merits in the present revision petition, as the petitioners cannot claim to be in a better position than the original plaintiff. Secondly, the order of dismissal in default passed by the Court below is with reference to the cause of action as mentioned in that suit and the petitioners herein claim only as legal representatives of the deceased original plaintiff, who died on 15.01.2002. If the petitioners have cause of action subsequent thereto, it is for the petitioners to take appropriate proceedings in accordance with law. There is no justification in the request of the petitioners seeking restoration of a suit of 1996 at this distance of time. The civil revision petition is accordingly dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J June 30, 2011 DSK [1] 1995 (3) ALT 685