HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.4563 OF 2009 Dated 31-5-2010 Between: B.Govinda Reddy, represented by his GPA Holder Sri P.Mastan Reddy. …Appellant. And: The Government of Andhra Pradesh, represented by the Principal Secretary, Irrigation CAD Department, Secretariat, Hyderabad and others. …Respondents. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.4563 OF 2009 ORDER: The plaintiff in O.S.S.R No.13743 of 2000 on the file of the learned Chief Judge, City Civil Court, Hyderabad is the revision petitioner. The said suit came to be filed in the circumstances as follows: The petitioner/Plaintiff is a contractor registered with the Government of Andhra Pradesh and he was awarded works relating to YLMC from Km.42.00 to 48.30. While the tender of petitioner was accepted, the petitioner carried the works and during the process of the said works, some disputes arose between the parties. According to the petitioner, a huge payment remained due in spite of the petitioner’s request which latter on resulted in invokation of the Arbitration Clause of the contract. Ultimately, the present suit came to be filed by the petitioner seeking recovery of the amount in respect of the work done under the said contract. The suit was filed after issuing statutory notice under Section 80 C.P.C. seeking recovery of Rs.7,88,59,627/- with interest at 18% per annum. The said suit though filed on or about 20-8-2000, the same was returned by the office of the learned Chief Judge with some objections on 6-9-2000. It is alleged that the suit was represented duly complying with objections on 21-9-2000 but again the suit was returned by the office on 25.9.2000. It is specifically alleged that the previous Junior counsel had received the returned bundle but the same could not be represented for the reasons that the previous counsel shifted his office form Himayat Nagar to Jublee Hills and latter since 2007, the said junior counsel left his office. It is also alleged that the petitioner has been suffering from health problems from the year 2000 and he underwent bypass surgery in the year 2004, lost eye sight due to diabetes and has been undergoing operations for one problem or the other every year. Medical reports were produced along with affidavit and the affidavit of the then junior counsel was also produced. Counter has been filed by the respondents alleging that the reason given does not sufficiently explain reasons for the purpose of condonation. Learned Chief Judge considered the petitioner’s application for condonation of delay in representation and on the ground that no affidavit of the junior counsel is filed and averments of the petition shows that the return bundle was not represented after 9 years, consequently, the petitioner was held not entitled to seek condonation of delay in representation. The said application accordingly was dismissed. Aggrieved thereby, the present revision is filed. Heard the learned counsel for the petitioner and the learned Government Pleader. Counter affidavit has been filed by the learned Government Pleader giving out the history of the previous litigation which ultimately led to filing of the present suit. The learned Government Pleader, therefore, submits that the present suit has not been represented for a long period of nine years and as such, the impugned order does not warrant interference by this Court. The application under consideration before the lower Court was an application seeking extension of time under Section 148 C.P.C. and under Section 151 C.P.C. to condone the delay in representing the returned OSSR No.13743 of 2000. Though the Court below has approached the said application as if it is an application seeking condonation of delay in filling the petition under Section 5 of the Limitation Act, it is to be noted that the suit was filed in time but it was returned for compliance with office objections and for the reasons as mentioned by the petitioner, on the ground of his own health problems and previous counsel shifting the office from Himayathnagar to Jublee Hills, the bundle was not represented. In normal circumstances, it is the counsel assisted by the junior who takes care of office objection and rectifying the defects for matters which are already filed. In the present case, the junior counsel in his affidavit states that on account of shifting of office of the counsel, returned bundle was misplaced in the office and subsequently, the junior counsel left the office of the learned counsel for the petitioner. The affidavit filed by the junior counsel has not been controverted nor has been taken note of by the learned Chief Judge while deciding the application. Similarly, the counter filed by the respondents before the Court below which is also available at page 47 of the papers filed in C.R.P. also was not taken note of by the Court below and the impugned order is passed as if there is no counter and also as if there is no supporting affidavit of junior advocate of the petitioner. Both the assumptions are factually incorrect and it is evident that the averments of the petitioner in support of the condonation sought for are supported by the junior counsel’s affidavit. It is also to be seen that the petitioner would not gain any advantage by not representing the returned suit and the fact that the petitioner suffered from several health problems as evidenced by the medical record produced by the lower Court also is not in serious controversy as the counter filed by the State before the Court below does not specifically dispute the same. In the circumstances, therefore, the delay in representation ought to have been condoned. It is well settled that the length of the delay is not material as long as sufficient cause and explanation is duly on record and therefore, the impugned order is liable to be set aside and the delay in representing the OSSR deserves to be condoned. Learned Government Pleader submits alternatively that even assuming that the petitioner is entitled for condonation of delay in representation, the suit would now be numbered and now be disposed of on merits and in the event of petitioner succeeding in the suit, the long period of about nine years during which the suit was not represented, would also be counted for the purpose of awarding interest. The learned Government Pleader, therefore, submits that when there is no fault of Respondent-State, they should not be mulcted with liability of interest in the event of petition being numbered and decreed. Mr. M.Pandu Ranga Rao, leaned counsel for the petitioner fairly concedes that in view of the petitioner and his the then counsel been responsible for not representing the suit within time, in the circumstances as stated above, the petitioner shall not claim any interest for the period from 6-9-2002 till today i.e., the date of this order, in the event of his success in the suit. The said fair confession by the learned counsel for petitioner, therefore, sufficiently safeguards the interest of the respondents as pointed by the learned Government Pleader. It is, therefore, made clear that though the suit is now to be numbered by the Court below and disposed of on merits; in the event of petitioner succeeding in the suit, he shall not be entitled for interest for the period aforesaid. Subject to the above, this C.R.P. is allowed and the impugned order is set aside. The learned Chief Judge shall number the suit if it is otherwise in order and hear and decide the same in accordance with law. No costs. _____________________________________ Justice VILAS V. AFZULPURKAR Dated 31-5-2010. Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.4563 OF 2009 Dated 31-5-2010