THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.5346 of 2009 ORDER: This civil revision petition is directed against the order dated 23.07.2009 passed in IA No.2059 of 2008 in un-numbered appeal suit, wherein, the said application filed by the petitioners herein under Order 41 Rule 3A CPC read with Section 5 of the Limitation Act, to condone the delay of 663 days in filing the appeal, was dismissed. 2. Heard the learned counsel for the petitioners and the learned counsel for the respondents. Perused the records. 3. The petitioners are the defendants. The first respondent filed suit OS No.360 of 2001 on the file of the Principal Junior Civil Judge, Vizianagaram for declaration of title to the plaint schedule property and for recovery of the possession of the plaint A schedule property after evicting the defendants there from and for ascertainment of future mesne profits and the same was decreed on 03.11.2006. Aggrieved by the said judgment and decree, the petitioners/defendants filed un-numbered appeal, with a delay of 663 days, along with a petition in IA No.2059 of 2008 seeking condonation of the said delay. In the said petition, it is stated that the learned counsel, who appeared for the petitioners/defendants in the trial Court by name Devaki Nandan Rathi wound up his practice at Vizianagaram and shifted his practice to Hyderabad and told the petitioners that their file was misplaced in the records during transit and ultimately, it was traced and sent to the petitioners about a week prior to filing of the petition. 4. The first respondent herein/plaintiff filed a counter opposing the said application and contended that in spite of having knowledge of the judgment and decree passed against them, they did not purposefully file any appeal in time and resisted the Court Amin and caused obstruction to the execution proceedings in EP No.206 of 2007 and subsequently, approached the Court with unclean hands. The learned District Judge by impugned order dismissed the said application observing that the submission made by the petitioners are not satisfactory and explanation offered for condoning the abnormal delay of 663 days in filing the appeal was not satisfactory. Aggrieved by the same, the present revision is filed. 5. During hearing of the revision petition, learned counsel for the petitioner filed affidavit of Sri Devaki Nandan Rathi, learned counsel, who appeared for the petitioners/defendants before the trial Court, wherein, he has sworn to the fact that he had wound up his practice at Vizianagaram and shifted to Hyderabad, because of his personal calamities and the untimely death of his daughter and that the case file of the petitioners was in fact, misplaced and he could trace it and send it to the petitioners only recently. The contents of the said affidavit filed by the learned counsel would support the plea of the petitioners as to the reasons for the delay in filing of the appeal. There are absolutely no reason to disbelieve the version contained in the affidavit sworn to by the learned counsel, who appeared for the petitioners/defendants before the trial Court that the file was misplaced by the learned counsel and it could not be furnished to the petitioners/defendants in time for preferring the appeal. It may not be proper to put the said circumstance against the petitioners, as they cannot be held responsible for missing of the file, which included the certified copies of the judgment and decree. As the delay in filing the appeal is shown to be for the reasons beyond the control of the petitioners, it is considered that an opportunity be given to them to have the appeal disposed of on merits, especially, having regard to the fact that the suit is one for declaration of title and for recovery of possession of the immoveable property. 6. However, as rightly pointed out by the learned counsel for the first respondent/plaintiff, Sri Devaki Nandan Rathi, learned counsel, appeared only for some of the defendants i.e., Defendants 1 to 3 and 6 to 8. The suit against the defendants 4, 5 and 10 was dismissed. The 9th defendant-Akkabattula Gowri, who is the 7th petitioner herein was represented by another counsel Sri KVN Thammanna Setty before the trial Court and admittedly, he is practicing at Vizianagaram. There is however, no satisfactory explanation for the delay in filing of the appeal on the part of the 7th petitioner herein i.e., 9th defendant. 7. In the circumstances, it is considered just and proper that the delay in filing the appeal be condoned, on payment of costs of Rs.1,000/- (Rupees one thousand only) by the petitioners to the first respondent, within a period of four (4) weeks and on such payment, the appeal be taken on file, if it is otherwise in order. 8. In the result, the civil revision petition is allowed setting aside the impugned order dated 23.07.2009 passed in IA No.2059 of 2008, subject to payment of costs as stated above. No order as to costs. In default of payment of costs in time, the order of dismissal passed by the trial Court stands confirmed. ___________________ G.V.SEETHAPATHY, J Date: 26.03.2010 bss IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE TWENTY SIXTH [26TH] DAY OF MARCH, TWO THOUSAND AND TEN Present: Hon’ble Sri Justice G.V.SEETHAPATHY CRP No.5346 of 2009 Between: Chanamalla Sanyasamma @ Chantamma (died) & others … Petitioners And: Yerramseti Lakshminadha Rao & others … Respondents