IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) 25/03/2010 PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY CIVIL REVISION PETITION NO : 5452 of 2009 Between: Khambampati Somasekhar S/o Madhava Rao ... PETITIONER AND Settipalli Venkata Rao and three others .....RESPONDENTS ORDER: This Civil Revision Petition has been directed against the order dated 13.10.2009 passed in I.A.No. 1468 of 2009 in O.S.No. 13 of 2007 on the file of II Additional District Judge, Nalgonda at Suryapet, wherein and whereby the II Additional District Judge dismissed the application filed by the 4th defendant to reopen the case for adducing evidence on his behalf. Notice before admission came to be ordered on 30.11.2009. First respondent entered appearance through a counsel. First respondent- plaintiff filed the suit for partition. Respondents 2 to 4 are defendants 1 to 3 and where as the petitioner herein is D4 in the suit. Petitioner D4 is a purchaser of the suit schedule property. He filed a separate written statement resisting the claim of the plaintiff. Defendants 1 to 3 also filed written statements resisting the claim of the petitioner. The trial commenced and the plaintiff examined witness on his behalf. When the case was coming up for evidence on behalf of defendants, neither petitioenr-4th defendant nor his counsel appeared and consequently, evidence on behalf of defendants came to be closed. Thereafter, the petitioenr-4th defendant filed I.A No. 1468 of 2009 to reopen the matter and to adduce evidence on his behalf. In the affidavit filed in support of the petition, he stated as hereunder: “It is further submitted that I am in the impression and the advise given to me that I have to adduce my evidence after completion of the evidences of the defendants 1 to 3. But, due to non-appearance of my cou8nsel at the time of call work, the evidences were closed and put the matter for argument. In fact, I have to come in the witness box and to give evidence in support of my case, as there are every good chances of getting success of the case, as I am the bona fide purchaser of the plaint schedule property for valid consideration and the plaint schedule property is in my peaceful possession and enjoyment. Therefore, I am advised to file this petition to REOPEN the matter to adduce my evidence. Except the above bona fide reason, there is no willful negligence or default on my part to protract the proceedings.” The plaintiff has not filed any counter. The learned Additional Judge dismissed the application by order-dated 13.10.2009. The order passed by the learned Additional Judge reads as under: “Counter not filed. No representation on behalf of R3 and R4. Heard no reasons are given in the affidavit for not representing the case. It is mentioned on the affidavit that Counsel for D4 has not attended the Court. No reason is given why he was not attended the Court. Hence petition is dismissed.” The said order is assailed in the Civil Revision Petition. Heard the learned counsel appearing for both sides. Learned counsel appearing for the petitioner submits that the petitioner was to commence his evidence after defendants 1 to 3 closed evidence on their behalf and as on 14.9.2009 the case was coming up for adducing evidence of defendants 1 to 3. Since the evidence of defendants 1 to 3 has not been closed by that date, commencement of evidence on behalf of defendant No. 4 does not arise. This factual aspect is not contradicted by the learned counsel appearing for the first respondent herein. The Trial Court dismissed the application without referring to the affidavit filed in support of the petition, wherein the petitioenr-4th defendant specifically pleaded that his evidence shall commence only after the closure of the evidence on behalf of defendants 1 to 3. The trial Court erred in dismissing the application filed by the petitioenr-D4. Hence, the order impugned in the Civil Revision Petition cannot be sustained and the same is accordingly set aside. In the result, the Civil Revision Petition is allowed and consequently I.A.No. 1468 of 2009 stands allowed. There shall be no order as to costs. ______________________________ B. SESHASAYANA REDDY,J Date: 25.03.2010 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies