IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY SEVENTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.5814 of 2008 BETWEEN Polepaka Hemalatha. ... PETITIONER AND Souram Maisamma (died) per LR’s. ...RESPONDENTS Counsel for the Petitioner: MR. PRABHAKAR PERI Counsel for the Respondents: MR. M. SALEEM The Court made the following: ORDER: Petitioner herein is the defendant in O.S.No.1253 of 1998 on the file of the Principal Junior Civil Judge, Warangal, filed by the respondents herein seeking declaration and consequential injunction with respect to Ac.1.05 guntas of land in Sy.No.193 of Enumamula village, Hanmakonda Mandal, Warangal District. The said suit was decreed under the decree of the trial Court dated 19.11.2003 and the petitioner received the certified copy of the said decree on 21.04.2004. She, however, states that she could not file the appeal as she was suffering from infective Hepatitis since 15.04.2004 and as such, presented the appeal only on 21.04.2005 along with an application being I.A.No.728 of 2005 seeking condonation of delay of 344 days in presentation of the appeal. The said application was contested by the respondents by filing a counter affidavit and the learned District Judge, Warangal dismissed the said application under the impugned order dated 24.03.2008. Hence, this revision. 2. Heard Mr. Peri Prabhakar, learned counsel for the petitioner and Mr. M. Saleem, learned counsel for the respondents. 3. Learned counsel for the petitioner submits that the delay is fully explained by the medical certificate, Ex.A1 and the sworn statement of the petitioner in support of the condonation of delay by examining herself in the said IA. The Court below, however, erroneously rejected the explanation submitted by the petitioner in spite of medical certificate on an erroneous ground that though the application for condonation of delay along with the appeal was filed in April 2005, she filed her affidavit in lieu of chief examination only on 29.03.2006 and as such, the delay from the date of filing of appeal and the date of filing of the affidavit in lieu of chief examination itself shows that the petitioner is not entitled for condonation of delay. 4. Learned counsel for the respondents, on the other hand, submits that though the medical certificate, Ex.A1, is filed to substantiate that the petitioner suffered from infective Hepatitis. He relies upon the cross-examination of the petitioner wherein she stated that afterwards she suffered dog bite as well and for that purpose she had taken treatment for seven days at Narayanguda, Hyderabad, but, admittedly, did not file any medical certificate. Learned counsel, therefore, submits that each day’s delay is required to be explained by the petitioner and she having failed to do that the lower appellate Court was justified in rejecting the application for condonation of delay. He also relied upon a decision of this Court in M. SHYAMALA v. DISTRICT PANCHAYAT OFFICER[1] for the proposition that the delay cannot be condoned on vague allegations unless sufficient cause is shown with details. 5. On consideration of rival submissions it is evident that the petitioner has supported her case of infective Hepatitis during the period in question by filing Ex.A1 medical certificate. The cross-examination of the petitioner, however, is entirely directed with respect to the subsequent dog bite suffered by the petitioner and the treatment said to have been taken for that purpose. Except suggesting that the petitioner did not suffer Jaundice there is hardly any cross-examination of the petitioner. Further, the infective Hepatitis coupled with Acid Peptic disorder suffered by the petitioner from 15.04.2004 to April 2005 being fully covered by Ex.A1, medical certificate, in my view, the petitioner had made out sufficient cause warranting condonation of delay, especially, as the said medical certificate was not contraverted and there is no other rebuttal evidence on behalf of the respondents. 6. It is also noteworthy that the reason given by the lower appellate Court pointing out the date of filing of the appeal and the application for condonation of delay (April 2005) and the date of filing of affidavit in lieu of chief examination (29.03.2006) and pointing out the unexplained delay between the aforesaid dates is wholly erroneous, as the petitioner could not have filed the affidavit in lieu of chief examination along with the appeal itself. Rejecting the petitioner’s application for condonation of delay on such erroneous ground, therefore, cannot be sustained. Further, the decision in M. SHYAMALA’s case (1 supra) relied upon by the learned counsel for the respondent also has no application in view of the fact that in that particular case neither there were any details nor allegations substantiating any sufficient cause and that is why, that was described as a vague ground whereas in the present case, the specific averment of the petitioner in the affidavit as well as in her evidence was not shattered on cross-examination of the petitioner. The counter affidavit filed by the respondent merely stated that the medical certificate filed by the petitioner is false but there was no material evidence on behalf of the respondents and even otherwise the medical certificate could not have been disputed by the respondent in the facts of the present case. 7. For all the aforesaid reasons, I am inclined to set aside the impugned order and accordingly, it is set aside. The delay is condoned, however, on condition that the petitioner shall deposit costs quantified at Rs.1,000/- (Rupees One Thousand only) to the credit of the lower appellate Court within two (2) weeks from today. On such deposit, the respondents shall be entitled to withdraw the same without furnishing any security. On compliance, as to deposit, the lower appellate Court shall number the appeal if it is otherwise in order and hear and decide the appeal on merits in accordance with law. Consequently, in the event of default in complying with the condition, as to deposit, the application for condonation shall stand rejected. The civil revision petition is accordingly allowed. _____________________ VILAS V. AFZULPURKAR, J September 27, 2011 Note: Furnish C.C. of the order by 29.09.2011. (B/o) DSK [1] 2006 (6) ALT 664