IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD FRIDAY, THE SIXTEENTH DAY OF APRIL TWO THOUSAND TEN PRESENT THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI C.R.P.No. 1 5 6 6 of 2006 Between: Rama Rao Karna … Revision Petitioner V/s. M. Lahari … Respondent Counsel for the Revision Petitioner: Sri Ch. Ravindra Babu Counsel for the Respondent: None appeared ORDER : (Order follows 2nd page) THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI CRP.No. 1 5 6 6 OF 2006 O R D E R : Aggrieved of the order dated 04-1-2010 passed in IA.No. 37 of 2009 in I.A.No. 803 of 2007 in FCOP.No.494 of 2006 on the file of the Court of Judge, Family Court, Hyderabad, dismissing the application filed by the petitioner under section 5 of Limitation Act seeking to condone the delay of 370 days in filing the set aside petition, the present Civil Revision Petition has been filed. 2. The facts of the case are that the petitioner and respondent were married on 24-1-2002 as per their Hindu religious rites and customs. It is stated that the respondent has filed OP.No. 494 of 2006 before the Court of Judge, Family Court, Hyderabad, seeking divorce from the petitioner by making false and baseless allegations. Pending the O.P. filed by her, the respondent had filed I.A.No.803 of 2007 seeking interim maintenance from the petitioner. It is stated that no notice was given to the petitioner in IA.No. 803 of 2007, the Family Court has proceeded with the matter by setting the petitioner ex-parte and passed exparte orders dated 13-12-2007 ordering the petitioner to pay Rs.3000/- per month from the date of main O.P. i.e., from 12-7-2006 and Rs.5,000/- towards legal expenses. It is further stated that after long lapse of time, the petitioner has come to know about the order dated 13-12-2007 passed by the Family Court, in IA.No. 803 of 2007 in OP.No.494 of 2006 and immediately the petitioner had filed I.A.No.37 of 2008 in I.A.No. 803 of 2007 in O.P.No. 494 of 2006 with a prayer to condone the delay of 370 days in filing the set aside petition duly explaining the reasons for delay in filing the set aside petition. Though the petitioner had explained proper reasons in filing the application with delay, but the court below without proper appreciation of facts and circumstances of the case had erroneously dismissed the I.A.No. 37 of 2008 through order dated 04-1-2010. 3. Aggrieved thereby, the petitioner-husband filed the present Civil Revision Petition. 4. The main contention of the learned counsel for the Revision Petitioner is that before passing any order, the trial court without affording any opportunity passed the impugned order in a posthaste manner and that too without appreciating the factual aspect that no notice was given to the petitioner in I.A.No.803 of 2007 and as such, the petitioner is unaware of the order passed by the Family Court on 13-12-2007 and thereby resulting delay in filing the application. Further the observation made by the trial court that postal endorsement “not claimed” indicates that petitioner did not take the notice, and thereby construing it as “deemed service”, without appreciating the relevant aspect that it is not sufficient to hold the same as deemed service. 5. The learned counsel for the petitioner further submitted that the observation made by the trial court in holding that the petitioner is interested only to file petitions one after another and keep the litigation surviving, and as such, the petition is liable to be dismissed, without appreciating the legal and factual aspects as explained by the petitioner in his application. 6. Heard the learned counsel for the Revision Petitioner and perused the record. 7. A bare perusal of counter affidavit filed by the respondent before the Family Court shows that in spite of several adjournments, even on conditions, the petitioner did not appear before the court after his first appearance and also filed his counter in O.P. Further the petitioner is filing petition after petition only with an intention to delay the proceedings and cause inconvenience to the Court and also to harass the respondent. The averments made in the counter-affidavit would further disclose that the petitioner himself admitting in his affidavit that notices were fixed on the notice board and orders were pronounced. 8. In view of the above facts and circumstances, the petitioner failed to explain the day-to-day delay except stating that no notice was given to him and the Family Court without issuing any notice setting him exparte is erroneous. Thus, the main contention of the petitioner is that no notice was given to him is palpably false. The learned Judge, Family Court has rightly observed that the postal endorsement “not claimed” indicates that petitioner did not take the notice, and thereby rightly construed it as “deemed service”. While things stood thus, the petitioner is throwing the blame on the Court with malafide intention and the learned trial Judge has rightly observed that the intention of the petitioner is to delay the proceedings and cause inconvenience to the Court and also to harass the respondent. The impugned order would further disclose that the petitioner is not diligent enough to prosecute the matter and he is playing dilatory tactics with the Court as well as the respondent and dilly-dallying the matter on one pretext or the other. Therefore, the reason mentioned by the petitioner assailing the order impugned herein is not germane and does not warrant any interference while exercising the inherent jurisdiction of this Court under section 115 of the Code of Civil Procedure. At any rate, the conduct of the petitioner is not fair in prosecuting the matter diligently. 9. In the light of the above circumstances, the reason mentioned by the petitioner does not inspire any confidence on this court to condone the delay of 370 days in setting aside the exparte order. The Civil Revision Petition fails and is liable to be dismissed inlimini. However, I deem it appropriate to direct the Judge, Family Court, City Civil Court, Hyderabad to dispose of the main HMOP.No. 494 of 2006 on merits and in accordance with law, uninfluenced by any of the observations made in this order. The above exercise shall be completed within a period of six months from the date of receipt of a copy of this order. 10. The Civil Revision Petition is accordingly dismissed. However, in the circumstances there shall be no order as to costs. ___________________________ JUSTICE T. MEENA KUMARI 16-04-2010 I s L THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI CIVIL REVISION PETITION No. 1 5 6 6 OF 2010 CIRCULATION ENTRY No. 4 5 Date: 16-04-2010 Court Master : I s L Computer No. 43