IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD Wednesday, THE 29th DAY OF DECEMBER, TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.3803 OF 2009 Between: P.Ashok Kumar … Petitioner And P.Premraj and others … Respondent This Court made the following: HON'BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.3803 of 2009 ORDER: - This revision is directed against the order, dated 10.07.2009, passed in I.A.No.2657 of 2008 in A.S.No.162 of 2006 on the file of I Additional Chief Judge, City Civil Courts, Secunderabad, The brief facts of the case are as follows: The revision petitioner herein is defendant No.2 in the original suit. Respondent No.1 herein filed the suit for partition. The petitioner herein and respondent Nos.1 and 2 are brothers. Respondent Nos.3 to 5 herein are tenants. The suit in O.S.No.101 of 1999 filed by respondent No.1 was decreed on 26.07.2006 by III Senior Civil Judge, City Civil Courts, Secunderbad. Challenging the said decree and judgment, the petitioner herein filed appeal in A.S.No.162 of 2006 on the file of I Additional Chief Judge, City Civil Courts, Secunderabad. Notices were ordered to the respondents. Again on 05.06.2007 fresh notices were ordered to respondent Nos.2 to 4 by speed post. As fees was not paid, the appeal was dismissed on 08.07.2007 for non payment of process. The petitioner herein filed I.A.No.2712 of 2007 for restoration of the appeal. The lower court allowed the said I.A. on 30.04.2008 and again the appeal was posted to 07.07.2008 for issuance of notices to respondent Nos.1 to 5. On 07.07.2008 again the petitioner failed to pay the process and the petitioner and his counsel were not present. In the above circumstances, the appeal was dismissed with costs. Then the petitioner herein filed I.A.No.2657 of 2008 to restore the appeal contending that his counsel was unwell and the leg of his counsel was operated and in the said circumstances he could not pay the process and therefore was no representation and that the delay was not intentional. The lower court observing that the docket proceedings reveal that the petitioner was not diligent in prosecuting the case even after giving an opportunity, dismissed the petition. Aggrieved by the same, this revision is filed. The only submission of the learned counsel for the petitioner is that the counsel for the petitioner in the lower court has also filed an affidavit in support of the case of the petitioner. As seen from the record, the learned counsel for the petitioner has filed his affidavit stating that he fell sick with high diabetes and high B.P. and suffered severe health disorders and that he could not look after the cases. It is also his case that he met with an accident and his right leg was fractured and that he was hospitalised for six months and ultimately his right leg was infected and amputated. Now it is represented that subsequently the said Advocate, who filed the affidavit, died. It appears that the junior advocate could not pursue the matter. The submission of the learned counsel for the respondent is that the petition to restore the appeal was filed on 28.07.2008 and at that time the petitioner himself filed the affidavit and his advocate did not file any affidavit at that time and after about one year his advocate filed an affidavit. The only point that arise for consideration is whether the petitioner should be given an opportunity to prosecute the appeal or not? The parties must be diligent and they must pursue the matter regularly. It is also the responsibility of the Advocates to see that the matters entrusted to them are properly represented. Of course, it is clear that the petitioner was not diligent inspite of giving him an opportunity for the second time to pay the process fee. However, no party should suffer for the inaction of his counsel. Having regard to the circumstances and particularly the facts stated by Sri Narendranath, Advocate, who is no more, with regard to his ill health and with regard to the accident resulting in fracture of his leg and subsequent amputation of his leg, the matter needs a sympathetic consideration. But, however, having regard to the latches on the part of the petitioner, I consider it just and reasonable to set aside the impugned order and allow the revision on the following terms and conditions: 1. On condition of the petitioner paying costs of Rs.5,000/- to respondent No.1 on or before 28th January, 2011, the impugned order stands set aside. 2. The petitioner also should deposit the process within a period of one week thereafter and proceed with the matter diligently. Subject to the above conditions, the Civil Revision Petition stands allowed. The lower court also shall make an endeavour to dispose of the appeal as early as possible preferably within four months from the date of receipt of a copy of this order. There shall be no order as to costs. _____________________ B.CHANDRA KUMAR, J December 29, 2010 lmv