IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTH DAY OF APRIL TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.1166 of 2007 Between: Vulchi Venkata Subba Reddy and others ... PETITIONERS AND Vulchi Krishnavenamma ... RESPONDENT ORDER: This revision preferred by the defendants 1 to 3 in the suit whose application for condonation of delay of 358 days in filing petition to set aside the exparte decree was dismissed under the impugned order of the trial court dated 20-12-2006. 2. The respondent herein filed a suit for declaration and possession with respect to 11 Cents of land and the said suit was coming up for cross-examination of PW-1 and was posted for that purpose on 07-05-2004. On that day neither the petitioners nor their counsel appeared and therefore, the court had set them exparte and passed an exparte decree in favour of the respondent. 3. When the summons in EP filed by the respondent was served on the petitioners they came up with the present application in I.A.No.428 of 2005 along with a petition to set aside the exparte decree. They had also filed an application in E.A.No.72 of 2005 in E.P.No.23 of 2005 seeking to stay all further proceedings in E.P. on the ground that applications to set aside the decree were pending. By order of the executing Court dated 07-06-2005 the executing court granted stay of all further proceedings in E.P. pending orders under Order 9 Rule 13 of the Code of Civil Procedure. Thereafter the trial court took up the present application seeking condonation of delay of 358 days and being not satisfied with the sufficient cause shown by the petitioners the said application was dismissed. Questioning the said order the present revision is preferred. 4. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 5. While the learned counsel for the petitioner has placed reliance upon the decisions of the Supreme Court in M.K. Prasad v. P. Arumugam[1], Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others[2] and N.Balakrishnan v. M. Krishnamurthy[3] for the proposition that length of delay is not the criteria and failure to adopt extra vigilance, should not be a ground to oust a party from litigation. 6. Learned counsel for the respondent on the other hand has placed reliance upon M/s.John Impex (Pvt.) Ltd. and another v. Athul Kapur and others[4] and State of Andhra Pradesh rep. by its Secretary to Government, Roads and Buildings Department and others v. A. Murali Madhava Rao and others[5] for the proposition that sufficient cause is the precondition and there must be adequate explanation for the default. 7. Learned counsel for the petitioner submits that the first petitioner is father of the petitioners 2 and 3 who is an old man aged more than 70 years and while second petitioner is the elder brother of the third petitioner. The second petitioner was looking after the present suit on behalf of third petitioner. The third petitioner stated in the affidavit that he was working as a Driver of a Tractor for more than one and half years with a Civil Contractor by name K. Sekar Reddy in Rajasthan State and could not follow up the suit. Whereas the second petitioner who is working as of Conductor in APSRTC was also pre-occupied with his employment and could not attend the court on the date fixed for cross- examination. Consequently, the petitioners were set exparte. Learned counsel also submits that the said sufficient cause has not been specifically denied in the counter filed by the respondent and keeping in view of the legal position settled and the decisions relied upon by the learned counsel for the petitioner the court below ought to have condoned the delay. 8. Learned counsel for the respondent states that the alleged reasons mentioned by the petitioners in the affidavit are not correct. The affidavit of the second petitioner also is not filed and there is also an inordinate delay of almost 358 days. Therefore, did not deserves to be condoned and was rightly rejected by the trial Court. 9. It is evident from the counter by the respondent in the present I.A.No.428 of 2005 that there is a general denial of petitioners allegations in paragraph No.4 of the counter affidavit. Further in paragraph No.5 of the counter-affidavit the only ground raised is that this application is filed to harass the respondent from enjoying the fruits of the decree. 10. Respondent has not denied the specific allegations of the petitioner that third petitioner is working in Rajasthan State as a Civil Contractor for more than one and half year. The fact that the second petitioner is working as a Driver in APSRTC and first petitioner being an aged person was also not specifically denied. Further the length of the delay is not relevant while considering the sufficient cause as held by the Supreme Court in N. Balakrishnan’s case referred to above. 11. Further in the instant case it is not as if that the petitioners can be castigated as irresponsible litigants and the circumstances mentioned by them cannot be said to be either artificial or of such nature that disentitle them from claiming the relief. It is also to be noted that on 07-05-2004 the suit was posted for cross-examination of PW-1. Even if the petitioners and their counsel were absent; the court below could have closed the petitioner’s evidence and posted the suit for evidence of defendants, if any, instead of passing exparte decree straightaway on that day. 12. The decisions cited by the learned counsel for the respondent in M/s.John Impex (Pvt.) Ltd. and another v. Athul Kapur and others[6] shows that the Supreme Court found that the very statement of the petitioners that they could not appreciate the summons as it was in English language was found to be factually incorrect as the summons was in fact not only in Hindi language but also in English language as well. The plea taken by the petitioners in that case, therefore, was found to be factually sustainable and in those circumstances the Hon’ble Supreme Court upheld the dismissal order of the court below in dismissing the application under Order 9 Rule 13 of the Code of Civil Procedure. 13. So far as the Division Bench judgment of this court in State of Andhra Pradesh rep. by its Secretary to Government, Roads and Buildings Department and others v. A. Murali Madhava Rao and others[7] is concerned, in that case State had sought for condonation of delay of 493 days in filing Writ Appeal and on analysis, this court found that the delay caused was in three stages and in spite of the specific directions of the Division Bench at the earlier instance inordinate delay further was caused in filing the proper application. This court, therefore, was satisfied in that case that there was a clear case of negligence and bureaucratical lackadaisical approach and the said delay was not condoned. In paragraph No.21 the Division Bench also says that the pragmatic approach while considering such application for condontion on the facts of each case is to be adopted. In that case the Division Bench was satisfied that the discretion was not deserved to be exercised in favour of the petitioner. 14. The said decisions on facts are clearly distinguishable and cannot apply to the present case. In view of the facts and circumstances herein it is clear that the employment of second and third petitioners and their engagement in the said employment was not specifically denied. Apart from the fact that the old age of the first petitioner was also not denied. The reasons given by the petitioners having not been categorically controverted by the respondent, it was not necessary for the petitioners to file any evidence in support of sufficient cause shown by them. The court below committed error in thinking that the delay does not deserves to be condoned as no document is filed by the petitioners in support of their specific averment. The Court below ought to have seen that the nature of the suit being for declaration of title and possession, the adjudication of the facts on merits was necessary instead of upholding the technicalities; in the interest of substantial justice. Therefore, I am of the view that the Civil Revision Petition deserves to be allowed. 15. Accordingly, the Civil Revision Petition is allowed. 16. However, the petitioners are liable to compensate the respondents by costs commensurate with the length of delay. The delay, therefore, shall stand condoned subject to the petitioners paying a sum of Rs.3,000/- (Rupees three thousand) to the respondent to the credit of the suit within a period of three (3) weeks from today, failing which the Civil Revision Petition stands dismissed. In the event of petitioners complying with the condition imposed as above, the trial Court shall take up the application to set aside the exparte decree and decide the same in accordance with law and pass appropriate orders and the trial Court shall thereafter take up the suit from the stage of cross-examination of PW-1 onwards, expeditiously. ____________________________ VILAS V. AFZULPURKAR, J April 08, 2010. PN THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.1166 of 2007 April 08, 2010 [1] (2001) 6 Supreme Court Cases 176 [2] AIR 1987 Supreme Court 1353 [3] (1998) 7 Supreme Court Cases 123 [4] 2009 (6) ALT 19 (SC) [5] 2009 (3) ALT 637 (D.B.) [6] 2009 (6) ALT 19 (SC) [7] 2009 (2) ALT 637 (D.B.)