THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY CIVIL REVISION PETITION No.6183 of 2010 Date:01.07.2011 Between: Eadala Bhaskar Rao ..... Petitioner AND Baddula Mallaiah and others .....Respondents Counsel for the Petitioner: Sri A.V. Seshasai Counsel for Respondents: None appeared The Court made the following: ORDER: This civil revision petition arises out of the order dated 24.02.2010 in I.A.No.293 of 2009 in I.A.No.2615 of 2006 in O.S.No.13 of 2004 on the file of the learned Principal District Judge, Nalgonda. In spite of service of notice, the respondents have not entered appearance. I have heard Sri A.V.Seshasai, learned counsel for the petitioner and perused the record. The petitioner is the plaintiff in O.S.No.13 of 2004. The said suit was filed for declaration that the deed of registered document No.4 of 2002 dated 13.02.2002, whereby the registered G.P.A. bearing No.70 of 1989 dated 26.07.1989 was revoked, is illegal and invalid, and for the alternative relief of specific performance of agreement dated 16.11.1988 executed by the defendants in favour of the plaintiff and for perpetual injunction restraining the defendants from interfering with the plaintiff’s possession and enjoyment over the suit land. The said suit was dismissed for default by order dated 06.09.2006. The petitioner filed an application for restoration of the suit along with I.A.No.2615 of 2006 for condonation of 30 days’ delay in filing the restoration application. On 15.12.2007, I.A.No.2615 of 2006 was dismissed for default. Later, the petitioner filed I.A.No.293 of 2009 for condonation of delay of 356 days for restoration of I.A.No.2615 of 2006. In support of the said application, the petitioner filed an affidavit, wherein he inter alia stated as under: “It is submitted that I engaged Sri C.Kodandaram, Advocate, Hyderabad as my counsel on my behalf. Sri K.Srinivasu as the Counsel assisting him and pursuing the case on his behalf at District Court, Nalgonda. One N.Srinivas, who is working in the Office of Sri C.Kodandaram, Advocate at that relevant point of time is also on record and is co-ordinating between me and the Counsel at Nalgonda on behalf of Sri C.Kodandaram. Sri N.Srinivas used to inform the proceedings and stage of the case from time to time. He left the Office of Sri C.Kodandaram in the year 2007. In the above said suit, notice was served on the defendants and the matter was coming up for trial. At that relevant point of time i.e., in the month of September, 2006, I suffered from chicken gunia and unable to attend the Court for a period of three months. Due to my sudden illness, I could not pursue the matter. It appears due to non- appearance of my counsel, in the absence of any representation on my behalf, the suit was dismissed for ‘non- prosecution’ on 06.09.2006. Immediately on coming to know about the same, I filed an interlocutory application for restoration of suit, along with a petition in I.A.No.2615/2006 to condone the delay of 30 days in filing the restoration petition. Notices were served on the respondent/defendants. The 4th respondent set exparte, as he did not choose to appear after receipt of notice. The matter was being posted for counter from time to time on 14.6.2007 onwards. It appears, the respondents filed counter and the matter was posted for enquiry. I was informed that on 7.11.2007, the Presiding Officer was absent and the matter was adjourned to further date. Since then, I was being informed that the matter is pending consideration and the matter may be heard and appropriate orders would be passed. In the interregnum, due to some personal work, I went to U.S.A. and after my return, I personally went to Nalgonda to find out the stage of the I.A. as it is said to be pending for the last one year. I met my counsel on 22.12.2008. The Counsel instructed his clerk to pick up the bundle and verify the next date of hearing. On verifying the bundle, the counsel found that there is no date of hearing noted on the case bundle, subsequent to 17.11.2007. I along with my Counsel, Sri Srinivasu went to the Court to verify the records. To my utter surprise, the delay petition was dismissed for default for non-appearance of the Counsel on 15.12.2007 itself. I respectfully submit that I was under the bona fide impression that the matter is pending and the Counsel is looking after the matter. But, unfortunately, due to oversight, the same was not noticed by my Counsel. It appears, the bundle was mis- placed and the I.A. was dismissed for default on 15.12.2007. As the bundle was mis-placed and tracked out, the subsequent date of hearing was not noted by my Counsel. Non-appearance of either myself or my counsel on 15.12.2007 is neither willful nor wanton, except for the reasons stated above. I was under the bonafide impression that the matter is pending consideration before the Hon’ble Court. The suit is filed for declaration of my title by declaring that the revocation of G.P.A. executed in my favour as illegal and also for specific performance of the suit agreement. The respondents/defendants having received the entire sale consideration, delivered possession of land to an extent of Ac.8.08 gts in Sy.No.12 of Toopran village. As my valuable rights are being affected without any fault on my part, the suit was filed. Despite due diligence on my part, I was causing enquiry with my counsel from time to time about the stage of the case, despite the same I.A.2615/2006 was dismissed for non-prosecution. I have filed an application for restoration of the same and the same is pending.” The Court below has rejected the explanation offered by the petitioner by observing that the affidavit is silent as to why he did not give specific instructions to his Advocate while going to U.S.A. and that his averment that after his return to India on 22.12.2008, he went to his Advocate and found that no date of hearing was mentioned in the bundle, shows that his Advocate also did not evince any interest in pursuing I.A.No.2615 of 2006. At the hearing, the learned counsel for the petitioner fairly conceded that the explanation offered by the petitioner is somewhat unsatisfactory, but he pleaded that there were many suits pertaining to the adjacent lands, all of which are identical and that they were all decreed in favour of the petitioner. He further stated that if O.S.No.13 of 2004 is allowed to go for default, substantial injustice will be caused to the petitioner. In my opinion, the Court below ought to have shown some latitude in favour of the petitioner while dealing with the application for condonation of delay. This is not a case where the petitioner has completely neglected to pursue the suit. Evidently, on account of his absence in India, I.A.No.2615 of 2006 was dismissed for default. Having regard to the fact that similar suits were decreed in favour of the petitioner, allowing O.S.No.13 of 2004 to be dismissed for default would, in my opinion, certainly cause grave hardship to the petitioner. Therefore, on the facts and circumstances of the case, I am of the opinion that in the interests of justice, I.A.No.293 of 2009 and the suit deserve to be allowed. However, as the petitioner had not shown the degree of diligence which is required in pursuing the suit, he shall pay costs of Rs.10,000/- (Rupees ten thousand only) to the respondents. On payment of such costs within a period of four weeks from today, I.A.No.293 of 2009 shall stand allowed. Subject to the above directions, the Civil Revision Petition is allowed. As a sequel to allowing the C.R.P., C.R.P.M.P.No.8203 of 2010 is disposed of as infructuous. ________________________ C.V.NAGARJUNA REDDY, J 01st July, 2011 GHN