1 APHC010262902022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3560] THURSDAY, THE EIGHTH DAY OF JANUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CIVIL REVISION PETITION NO: 1734/2022 Between: 1. KOROPROLU APPALA NAIDU (DIED) PETITIONERS 3 AND 4 brought on record as L.Rs of deceased 1st petitioner. 2. KORUPROLU LAKSHMI, W/O LATE APPALA NAIDU, AGE 50 YEARS, HINDU, OCC. HOUSE-CUM-CULTIVATION, R/O MALLAVARAM VILLAGE, MAKAVARAPALEM MANDAL, VISAKHAPATNAM DISTRICT. 3. KORUPROLU RAMA KRISHNA,, S/O LATE APPALANAIDU, AGED 41 YEARS, HINDU, CULTIVATION, R/O MALLAVARAM VILLAGE, MAKAVARAPALEM MANDAL, ANAKAPALLI DISTRICT. 4. KORUPROLU KRISHNA KUMAR, S/O LATE APPALANAIDU, AGED 33 YEARS, HINDU, CULTIVATION, R/O MALLAVARAM VILLAGE, MAKAVARAPALEM MANDAL, ANAKAPALLI DISTRICT. ...PETITIONER(S) AND 1. SUDIKONDA AYYAPPA MUSILI, S/O NOOKAYYA, AGED ABOUT 74 YEARS, HINDU, OCC. CULTIVATION, R/O PEDDIPALEM VILLAGE, MAKAVARAPALEM MANDAL, VISAKHAPATNAM DISTRICT. 2. SUDIKONDA SAMBA MURTHY, (DIED) (2ND RESPONDENT IS NOT NECESSARY IN THIS C.R.P HENCE GIVEN UP) ...RESPONDENT(S): 2 Counsel for the Petitioner(S): 1. T V SRI DEVI Counsel for the Respondent(S): 1. K SUBRAHMANYAM The Court made the following: 3 THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CIVIL REVISION PETITION NO: 1734/2022 O R D E R: 1. The instant Civil Revision Petition has been preferred against an order dated 28.03.2022 passed by the learned Senior Civil Judge at Narsipatnam in I.A.No.1137 of 2014 in O.S.No.31 of 2000. 2. The brief fact of the matter is that: Respondent being a plaintiff filed a suit in O.S.NO.31 of 2000 for specific performance of contract. Petitioner being Defendant appeared and contested the suit by filing written statement. The suit went up to trial stage. On 09.02.2011 suit was post for cross examination of P.W.5 and P.W.6 by 2nd petitioner/defendant. Petitioner could not appeared, none represented on that day. Accordingly, the learned court below has heard the matter ex-parte on that day and passed an ex-parte decree on 09.02.2011. 3. It is the contention of the petitioner/defendant that he was suffered from Malaria fever and Jaundice on that particular date (09.02.2011), consequently he could not appeared. Thus one application under Order IX, Rule 13 of the Civil Procedure Code was filed on 28.02.2011 (within 30 days from the date of ex-parte decree). Further, the learned Court below has proceeded to hear the application being I.A.No.105 of 2011 but only on 17.07.2013 it was observed by the learned Court below at the time of passing of Order that there 4 are some discrepancies in filing of such I.A.No.105 of 2011, thus it was ordered to be returned for refilling the same after curing the defect. It is the contention of the Petitioner that such original I.A.No.105 of 2011 never returned to the petitioner or to his learned Counsel by the court on the ground that court officials misplaced the said I.A.,. Reasons thereby, the petitioner again had to file a fresh application under Order IX Rule 13 of the Civil Procedure Code along with an application for condonation of delay of 287 days vide I.A.No1137 of 2014. Learned Court below heard the application and is of the view that as no documentary evidence was placed by the Petitioner/defendant, the application for condonation of delay was turned down. Hence, the Civil Revision Petition. 4. Learned counsel for the petitioner submits that the execution petition filed (vide E.P.No.4 of 2013) arising out of ex-parte decree in O.S.No.31 of 2000 was also allowed and disposed of by the same court on 17.07.2013. Learned counsel for the petitioner further submits that the impugned order passed by the learned court suffers illegality. The learned court below has not proceeded according to law in disposing of application under Order IX rule 13 of the Civil Procedure Code which was initially filed vide I.A.No.105 of 2011. She further submits that only due to one day unintentional latches of the defendant, the entire suit was decreed ex-parte, while the defendant was contesting the suit with diligence by filing written statement and by taking steps in the entire suit. He 5 further submits that the impugned order passed by the learned court below has intentionally put hardship to the petitioner/defendant. Accordingly, the same is required to be set aside. 5. Learned counsel appearing on behalf of the respondent raised objection. He submits that the court below has committed no error. Admittedly, no documentary evidence was placed before the learned court below to show the illness of the petitioners/defendant. He further submits that the petitioner never filed any application for stay in the execution proceeding. Moreover the instant Civil Revision Petition has not been filed challenging any proceeding. Accordingly, this court cannot consider the submission of the petitioner regarding execution proceeding. He further submits that this court time and again expressed the view that when there is no documentary evidence in proof of illness or incapacity of petitioner seeking condonation of delay under section 5 of the Limitation Act any court should not take lenient or pragmatic approach. In support of his contention the learned counsel for the respondent has cited a decision of this Court passed in C.R.P.No.665 of 2020 dated 17.12.2025 wherein at paragraphs 8 and 9 of the Order it was held that- “8. Section 5 of the Limitation Act has given power to a Court to condone the delay. The power to the Court is discretionary in nature. How the discretion should be exercised, has been enumerated in Section 5 of the Limitation Act itself. The Court dealing with an application under Section 5 of Limitation Act must be satisfied regarding the reasons stated by the party seeking condonation. The reasons 6 should be so sufficient, which entitled a Court to use its discretion. The expression sufficient cause under Section 5 of the Limitation Act may be construed, liberally, but said liberal approach does not mean that the sufficient cause as shown by the party would be a blanket exercise. 9. In this particular case the sufficient cause as shown by the Respondent/Defendant is his illness due to an accident; but no documentary evidence regarding accident or his treatment was placed before the Court. Learned Court below has basically believed the affidavit as placed by the defendant before the Court. The Counter Affidavit filed by the Plaintiff denied the entire facts. When there is affidavit and Counter Affidavit, the Court has to satisfy itself on basis of some documentary proof or any material thereof. In this case, it appears that the learned Court below has misguided himself in dealing with the matter and only proceeded to satisfy himself on the basis of affidavit placed by the Defendant. In my view, when there is a Counter Affidavit by the parties, the Court must not incline to accept the affidavits of either parties, must ask for other materials, in support of the affidavits of the parties. In this case, no documentary evidence or medical paper was placed by the Respondents/Defendants”. Learned counsel for the respondent further submits that by virtue of the decision given by this court in C.R.P.No.665 of 2020 the similar approach may be taken herein and by such way the instant Civil Revision Petition is liable to be dismissed. 6. Heard the learned counsel for the parties. 7. It appears that entire suit was filed in the year 2000. The suit proceeded and at the end stage of trial, chief affidavits of P.W.5 and P.W.6 were filed and fixed for cross examination by 2nd defendant. On that particular day, 2nd defendant did not appear consequently learned court below has proceeded to hear the matter ex-parte and decreed the same ex-parte. Though an application for setting aside an ex-parte decree was filed within 30 days with a ground that 7 on that particular day defendant No.2 was suffered from Malaria fever and jaundice, but no documentary evidence was placed on record. However, it appears from the order dated 17.07.2013 while the I.A.No.105 of 2011 (earlier application under Order IX, Rule 13 of the Civil Procedure Code) was disposed of by the learned court below, it appears that after filing of the said earlier application, the office of Court below had not initially checked the application, but already given I.A number, thereafter the plaintiff being respondent of I.A was allowed to file counter. After filing counter, at the time of hearing, point for determination was also fixed, at that time of determination of the application it appeared to the learned court that there are some defects in filing the said I.A.No.105 of 2011. He taken note of those defects and is of the opinion that it is better to return the application to the petitioner for compliance of the noted defects. The application under Order IX, Rule 13 of the Civil Procedure Code was not disposed of on merits but it was returned to the petitioner for compliance of the objection. It is the contention of the petitioner that though such Order was passed in the year 2013 but the same petition being I.A.No.105 of 2011 was not returned. i. It has been stated by the Petitioner that when they tried to search out the said petition, the officer of the court said that it was misplaced consequently he had to file further application under Order IX rule 13 of the Civil Procedure Code which causes delay of 287 days. So, in justifying the entire period of 8 limitation under Section 5 of the Limitation Act, it is his contention that he was absent on a single day. According to him, he was suffering from Malaria fever and jaundice. The next period of delay i.e., 287 days was due to non-getting I.A.No.105 of 2011 back from the court. ii. The factual situation of Civil Revision Petition No.665 of 2020 (as referred by the learned counsel for the respondent) is totally different. In C.R.P.No.665 of 2020 a suit was filed for specific performance of agreement for sale in which the defendant though appeared but not contested the suit by filing written statement. Thereafter, the suit was proceeded ex-parte for non-filing of the written statement and was decreed ex-parte thereafter. After the suit was decreed ex-parte, one application was filed by the defendant of that suit with a delay of 365 days, on the ground that he has suffered with an accident, for which, he could not take proper steps. In deciding such issue, this court is of the view that no documentary proof was placed on record regarding his accident and the period when he was admitted and suffered due to such accident and court has taken the view that the learned court below has erroneously believed the affidavit of the petitioner therein. The latches on the part of the defendant in C.R.P.No.665 of 2020 was glaring but in this particular case the latches on behalf of the defendant if taken be as it is feasible is for one day only. Thereafter delay of 287 days caused due to mistake of Court. In my view when I.A.No.105 of 2011 was within time, thus, the original application under Order IX, Rule 13 of the 9 Civil Procedure Code was filed within time. It has to be noted that the application under Order IX, Rule 13 of Civil Procedure Code being I.A.No.105 of 2011 was not disposed of on merits. Merely it was returned, but petitioner could not get the said I.A.No.105 of 2011 due to the latches on the part of the court and its officials. The learned court below at the time of hearing the instant I.A.No.1137 of 2014 has directed the office to place I.A.No.105 of 2011 but it was not placed. Reasons thereby causes possibly, properly answered by the said court. However, the decision adopted by the court for consideration of delay of 287 days only due to the latches of the petitioner is not justified. Petitioner may have cause delay for not appearing on a particular date but entire 287 days delay is caused due to the negligence and conduct of the officials of the court. Learned court has taken note of that fact. In my view, the learned court below while call for the I.A.No.105 of 2011 must have directed the official concerned to place the record. iii. When an application under Order IX Rule 13 of the Civil Procedure Code was not disposed of on merits and it was earlier placed before the learned court, the learned court should have taken proper view that there is no such delay of 287 days, due to the latches of the petitioner. In my view, the learned court below has proceeded erroneously in disposing of the application under Section 5 of the limitation Act. Accordingly, impugned order passed by the learned court below suffers illegal. The fact in C.R.P.665 of 2020 is totally 10 different to the fact of the present case and thereby distinguishable. Thus, that decision cannot be followed. iv. Accordingly, I find justification to entertain the Civil Revision Petition. Accordingly, the Civil Revision Petition is considered and allowed the application for condonation of delay filed under section 5 of the Limitation Act by the petitioner. 8. In the result, the Civil Revision Petition is allowed condoning the delay of 287 days under Section 5 of the Limitation Act. Learned Court below shall proceed to hear the application under order IX rule 13 of the Civil Procedure Code as early as possible according to law, most preferably within two (02) weeks after communication of this Order. It appears that the suit in O.S.31 of 2000 has already been decreed ex-parte, the Execution Proceeding pending since long, as there is long delay, the court below should have dispose of the entire suit most preferably within eight (08) weeks after Sankranthi vacation, 2026. The stay orders, if any, granted earlier by this court shall stand vacated. Consequently, pending miscellaneous applications, if any, shall stand closed. ___________________________ JUSTICE SUBHENDU SAMANTA KS Dated 08.01.2026. 11 148 THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CIVIL REVISION PETITION NO: 1734/2022 DATED 08.01.2026 KS