IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE EIGHTH DAY OF APRIL TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.4069 of 2010 BETWEEN Smt. Nittu Pedda lingubai and two others. ... PETITIONERS AND Labisetti Vishwanatham. ...RESPONDENT Counsel for the Petitioners : MR. C.R. PRATAP REDDYS Counsel for the Respondent: MR. J. KANAKAIAH The Court made the following: ORDER: Petitioners, who are plaintiffs in O.S.No.105 of 1995, are aggrieved by the refusal of the trial Court to restore the suit dismissed in default and further refusal of the lower appellate Court to grant relief to the petitioners. Hence, this revision. 2. Heard Mr. C.R. Pratap Reddy, learned counsel for the petitioners and Mr. J. Kanakaiah, learned counsel for the respondent. 3. From the facts recorded, it appears that the respondent herein filed a suit being O.S.No.22 of 1987 for declaration of title regarding the suit schedule property, which was decreed on 20.02.1987. Thereafter, the petitioners herein filed the present suit O.S.No.105 of 1995 also for declaration questioning the said decree in O.S.No.22 of 1987. In the aforesaid suit, the issues are said to have been settled on 11.12.1996 and the suit came to be dismissed for non-appearance of the petitioners on 20.04.1999. On an application being I.A.No.160 of 1999 filed by the petitioners for restoration, the suit was restored on 02.05.2003. Thereafter, when the suit was coming up for trial and was posted on 30.12.2003, the counsel for the petitioners filed his own affidavit along with I.A.No.674 of 2003 seeking 15 days time to proceed with the trial on the ground that the entire file and the records have to be received from the petitioners’ counsel, who appeared in the High Court for restoration of the suit earlier. The said application was rejected and the suit was dismissed for default on 30.12.2003. Thereafter, the petitioners filed the present application being I.A.No.45 of 2004 for restoration of the suit and the same was dismissed on contest and the said dismissal was confirmed by the lower appellate Court. 4. Learned counsel for the petitioners submitted that the affidavit of the petitioners clearly show that the first plaintiff was unwell and the deponent, who is the third plaintiff, had to accompany his mother along with the second plaintiff and as such, could not approach the counsel and could not proceed with the trial. A medical certificate issued by Pragathi Nursing Home, Kamareddy dated 29.01.2004 was filed along with the affidavit to show that the first plaintiff was hospitalized during the relevant time. That application was, however, opposed by the respondent by contending that the petitioners have deliberately failed to appear before the Court and dragged the matter for several years and that the medical certificate is false and is obtained in collusion with the doctor. 5. The trial Court under its order impugned considered the said affidavit averments together with the medical certificate but was of the opinion that the petitioners failed to show any ground as to why they failed to adduce evidence immediately after restoration of the suit i.e. from 02.05.2003 to 30.12.2003. In other words, the trial Court has not given specific finding with regard to the sufficient cause shown by the petitioner for default on 30.12.2003. The trial Court, therefore, opined that the petitioners have no interest in prosecuting the case. The lower appellate Court went further and proceeded to hold that the petitioners have not filed any document that the first plaintiff is suffering from any kind of ill-health and that the affidavit also does not mention the nature of illness. The said observation of the lower appellate Court is, obviously, in ignorance of the medical certificate produced by the petitioners as dealt with by the trial Court in its impugned order. A copy of the medical certificate is produced by both the learned counsel, which shows that the first plaintiff was under treatment at the said nursing home, as certified by the doctor, from 28.12.2003 to 29.01.2004. Prima facie, therefore, the petitioners have established the illness of the first plaintiff and petitioners 2 and 3, who are her sons, are expected to and have attended on the first plaintiff at the hospital and as such, could not proceed with the trial. The aforesaid cause shown by the petitioners in the affidavit, therefore, ought to have been accepted by the lower appellate Court without reference to the plaintiffs’ inability to proceed with the trial prior to 30.12.2003. The lower appellate Court, obviously, has failed to notice the medical certificate and as such, the said order is also not sustainable. 6. In the circumstances, keeping in mind the fact that the petitioners had filed an application for restoration together with an affidavit of one of the plaintiffs’ supported by a medical certificate within 30 days time, I am of the view that one opportunity to the plaintiffs to contest the suit on merits deservs to be given. The lower appellate Court’s view that the petitioners have allowed the suit to drag on for 8 years is also not justified inasmuch as earlier the suit was dismissed on 20.04.1999 and was restored only on 02.05.2003; the four years period lost in the process cannot be blamed on the petitioners/plaintiffs alone. Even then, the petitioners conduct is not totally devoid of any blame and it is apparent that they are leisurely prosecuting the suit, which is bound to cause prejudice to the respondent. Thus, in order to compensate the respondent on account of the delay caused by the petitioners in prosecuting the suit, I deem it appropriate to allow the revision petition subject to payment of costs of Rs.5,000/- payable by the petitioners to the respondent’s counsel here within a period of two (2) weeks from today and on production of receipt of payment, a copy of this order shall be transmitted by the Registry to the Court below and in the event of any default in complying with the order, the revision petition shall stand dismissed. 7. Learned counsel for the petitioners also undertakes that the petitioners shall cooperate with the trial Court for expeditious disposal of the suit. 8. The aforesaid undertaking of the petitioners is recorded and the trial Court is directed to hear and dispose of the suit as expeditiously as possible, in any case, within a period of three (3) months from the date of receipt of a copy of this order. The civil revision petition is accordingly allowed subject to the above. _____________________ VILAS V. AFZULPURKAR, J April 8, 2011 DSK