THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY C.R.P.Nos.4055 and 4058 of 2009 Dated:04th December, 2009 Between: Layola Public School, Nallapadu, Guntur District, rep. by its Principal. …Petitioner (in both CRPs) and 1. Inturi Venkata Subbamma & Ors. …Respondents (in both CRPs) *** THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY C.R.P.Nos.4055 and 4058 of 2009 COMMON ORDER: These two revisions are directed against the orders dated 26.08.2008 and 20.03.2009 passed in I.A.No.2301 of 2005 and I.A.No.1454 of 2008 in O.S.No.759 of 1989 on the file of the Principal Senior Civil Judge, Guntur, whereby and whereunder the learned Senior Civil Judge allowed both the applications of the plaintiffs filed under Section 5 of the Limitation Act and under Order 22, Rule 9 of CPC respectively. More precisely, C.R.P.No.4055 of 2009 is directed against the order passed in I.A.No.2301 of 2005 and C.R.P.No.4058 of 2009 is directed against the order passed in I.A.No.1454 of 2008. 2. Since the issue involved in both the revisions is one and the same, they are being heard together and disposed of by this common Order. 3. The respondents 1 to 3 herein are the plaintiffs in O.S.No.759 of 1989. They filed the suit against the petitioner herein and three others viz., Inturi Venkata Reddi, Inturi Koti Reddy and Boddula Sambrajyamma. The suit filed by the plaintiffs ended in dismissal for non-prosecution on 03.08.1999. The 2nd defendant viz., Inturi Venkata Reddi died on 01.06.2004. After the death of 2nd defendant, the plaintiffs filed an application to restore the suit along with delay condonation petition. Pending the restoration petition and delay condonation petition, the plaintiffs filed I.A.No.1454 of 2008 to set aside the abetment said to have been caused due to the death of the 2nd defendant. They also filed I.A.No.2301 of 2005 to condone the delay of 449 days in filing the petition to bring on record the legal heirs of the 2nd defendant. The petitioner herein, who has been shown as 1st respondent in the delay condonation petition and the abetment set aside petition, filed counter affidavits resisting the petitions. Para.6 of the counter filed in I.A.No.2301 of 2005 reads as hereunder: “The allegations that the mother of the petitioner is illiterate and aged woman, that his son is an agricultural cooli eking out his livelihood at Gogulapadu village of Dachepalli mandal, that 3rd petitioner is sailing with them was married and leading marital life with her husband at Komerapudi, and as such the first petitioner only the person to approach to their then counsel’s office to look after the litigation, that their then counsel on seeking his mother’s condition intimated to her that she will be informed by letter whenever she was required to give evidence in the court, that she was not informed by their then counsel years together, that the mother of the petitioner approached in the first week of August, 2005 and surprisingly knew about the said Counsel’s demise on 3-12-2001 due to ill-health for a long period, that on she made all efforts to enquire about their litigation from his colleague who is attached to their the then counsel’s office and learnt that the suit was dismissed for default on 3-8-1999, that their record from the bundles of the then counsel’s office through his daughter-in- law two days prior to filing of the petitions; that the 2nd respondent died intestate leaving behind his son and daughter i.e., respondents 5 & 6 and hence the delay of 14 months and 28 days is occurred in the filing of the LR application and to bring the LRs of 2nd respondent i.e, the respondents 5 & 6 as defendants 5 & 6 to the suit and such other allegations are specifically denied by this respondent and the petitioners are put to strict proof of the same.” The learned Senior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, proceeded to allow both the applications. The set aside abetment application came to be allowed on 20.03.2009 and whereas the delay condonation application came to be allowed on 26.08.2008 on payment of costs of Rs.100/- to the 1st defendant. The orders passed in the above referred two applications are assailed in these two revisions. 4. Heard learned counsel appearing for the petitioners/plaintiffs and perused the material brought on record. 5. Learned counsel appearing for the petitioners/plaintiffs submits that the petitioners purchased the property in the year 1962 and the plaintiffs and the other defendants are inter-related and they initiated proceedings to harass the petitioner/1st defendant. A further submission has been made that as on the date of filing of the petitions, the suit is not yet restored to file and therefore, the orders impugned in these revisions are liable to be set aside. 6. Sub-rule (5) of Rule 4 of Order XXII CPC reads as hereunder: “ (5) Where – (a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and (b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said section 5 have due regard to the fact of such ignorance, if proved.” 7. As seen from the affidavits filed in support of the petitions, the deponent, who is the 2nd plaintiff, stated in the affidavit filed in support of I.A.No.1454 of 2008 that the counsel engaged by them died due to ill-health. Paras.5 and 6 of the affidavit reads as hereunder: “5. My mother has got doubt about the fate of our litigation in the hands of senior counsel Sri V.Sambi Reddy and approached in the 1st week of August, 2005 and surprisingly knew about the said counsel’s demise on 3-12-2001 due to ill health for a long period. Later on she made all efforts to enquire about our litigation from his colleague who is attached to our the then counsel’s office and surprisingly that our suit was dismissed for default on 3-8-1999 as non appearance of our counsel and ourselves. The advocate who is attached to the then counsel’s office is not practicing legal profession since 1999 onwards and staying at Banglore. Being an illiterate it is very difficult for her and we also even to remember the number of suit and trace my record from the then counsel’s office as nobody take care of his office after his death. She came to know that the above said demised counsel was fell in ill health before our suit matured for trial and till his death. Under those circumstances the then counsel was not informed to my mother or to us in time and the suit was dismissed for default on 3-8-1999. We traced our record from the bundles of the then counsel’s office through his daughter-in-law two days prior to filing of these applications. 6) Immediately we approached the present counsel on record and we informed that there is a lapse of 6 years 26 days after dismissal of the suit for default. Our present counsel advised that we have to file an application for condonation of delay of 6 years 26 days with an application for restoration of the suit. We have no other properties except the property involved in this litigation. We have got good grounds to succeed in this case and we were prevented by the circumstances beyond our control. There is no willful default or negligence on our part to approach the then counsel’s office and we are prevented by the demised senior counsel’s assurance of intimation. Therefore, we have to be given an opportunity of prosecuting our case setting aside the order of dismissal of the suit dated 3-8-1999 for default by condone delay of 6 years 26 days.” By going through the affidavit filed in support of the petition, I am of the view that the plaintiffs have sufficiently explained the reasons for the delay in filing the application to set aside the abetment against the 2nd defendant. Therefore, I do not see any flaw in the orders impugned in these revisions. 8. Accordingly, both the Civil Revision Petitions are dismissed at the admission stage. No order as to costs. ______________________ B.SESHASAYANA REDDY, J. Date:04th December, 2009. CS THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY C.R.P.Nos.4055 and 4058 of 2009 Dated:04th December, 2009