APHC010707252022 IN THE HIGH COURT OF ANDHRA PRADESH TUESDAY, THE THIRD DAY OF FEBRUARY TWO THOUSAND AND TWENTY SIX THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI CIVIL REVISION PETITION NO: Between: 1. DODDA RAGHAVA RAO, S/O. LATE KONDAIAH @ YALLAMANDA, AGED 54 YEARS, OCC. PRIVATE TEACHER, R/O. RAVIPADU VILLAGE, NARASARAOPET MANDAL, GUNTUR DISTRICT. 1. DODDA YEDUKONDALU LATE KONDAIAH YALLAMANDA, S/O LATE KONDAIAH @ YALLAMANDA, AGED 53 YEARS, OCC. PRIVATE TEACHER,R/O D.NO.3 NARASARAOPET MANDAL, GUNTUR DISTRICT. 2. DODDA NAGESWARA RAO, S/O. LATE KONDAIAH @ YALLAMANDA, AGED 64 YEARS, OCC. PRIVATE TEACHER, R/O D.NO.3-157,. RAVIPADU VILLAGE, NARASARAOPET MANDAL, GUNTUR DISTRICT. 3. DODDA SRINIVASA RAO, S/O. LATE KONDAIAH @ YALLAMANDA, AGED 54 YEARS, OCC. EXCISE CONSTABLE R/O. D.NO.45 KUMMARIVARI VEEDHI, GUNADALA CENTRE, VIJAYAWADA KRISHNA DISTRICT 4. KANUKOLLU KRISHNA KUMARI DIED, AS 5. SOWBHAGYAPU ANNAPURNAMMA, W/O. VENKATESWARLU, AGED 58 YEARS, R/O. SRKT COLONY (RTC COLONY) D.NO.25 62,KESANUPALLI POST, NARASARAOPET MANDAL,GUNTUR DISTRICT. IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF FEBRUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI CIVIL REVISION PETITION NO: 378/2023 DODDA RAGHAVA RAO, S/O. LATE KONDAIAH @ YALLAMANDA, AGED 54 YEARS, OCC. PRIVATE TEACHER, R/O. RAVIPADU VILLAGE, NARASARAOPET MANDAL, GUNTUR DISTRICT. ...PETITIONER AND DODDA YEDUKONDALU LATE KONDAIAH YALLAMANDA, S/O KONDAIAH @ YALLAMANDA, AGED 53 YEARS, OCC. PRIVATE TEACHER,R/O D.NO.3-168, BEYRE. RAVIPADU VILLAGE, NARASARAOPET MANDAL, GUNTUR DISTRICT. DODDA NAGESWARA RAO, S/O. LATE KONDAIAH @ YALLAMANDA, AGED 64 YEARS, OCC. PRIVATE TEACHER, R/O AVIPADU VILLAGE, NARASARAOPET MANDAL, GUNTUR DISTRICT. DODDA SRINIVASA RAO, S/O. LATE KONDAIAH @ YALLAMANDA, AGED 54 YEARS, OCC. EXCISE CONSTABLE R/O. D.NO.45 KUMMARIVARI VEEDHI, GUNADALA CENTRE, VIJAYAWADA KRISHNA DISTRICT SHNA KUMARI DIED, AS SOWBHAGYAPU ANNAPURNAMMA, W/O. VENKATESWARLU, AGED 58 YEARS, R/O. SRKT COLONY (RTC COLONY) D.NO.25 62,KESANUPALLI POST, NARASARAOPET MANDAL,GUNTUR IN THE HIGH COURT OF ANDHRA PRADESH [3332] TUESDAY, THE THIRD DAY OF FEBRUARY THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI DODDA RAGHAVA RAO, S/O. LATE KONDAIAH @ YALLAMANDA, AGED 54 YEARS, OCC. PRIVATE TEACHER, R/O. RAVIPADU VILLAGE, NARASARAOPET MANDAL, GUNTUR DISTRICT. ...PETITIONER DODDA YEDUKONDALU LATE KONDAIAH YALLAMANDA, S/O KONDAIAH @ YALLAMANDA, AGED 53 YEARS, OCC. 168, BEYRE. RAVIPADU VILLAGE, DODDA NAGESWARA RAO, S/O. LATE KONDAIAH @ YALLAMANDA, AGED 64 YEARS, OCC. PRIVATE TEACHER, R/O AVIPADU VILLAGE, NARASARAOPET MANDAL, DODDA SRINIVASA RAO, S/O. LATE KONDAIAH @ YALLAMANDA, AGED 54 YEARS, OCC. EXCISE CONSTABLE R/O. D.NO.45-167, KUMMARIVARI VEEDHI, GUNADALA CENTRE, VIJAYAWADA SOWBHAGYAPU ANNAPURNAMMA, W/O. VENKATESWARLU, AGED 58 YEARS, R/O. SRKT COLONY (RTC COLONY) D.NO.25-7- 62,KESANUPALLI POST, NARASARAOPET MANDAL,GUNTUR 2 6. KONDAMURI RAJYA LAKSHMI, W/O. SAMBAIAH, AGED 56 YEARS, R/O. GANIKAPUDI VILLAGE, D.NO.2-102, EDLAPADU MANDAL, GUNTUR DISTRICT. ...RESPONDENT(S): Petition under Article 227 of the Constitution of India, praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased to set aside the Order and Decree dated 14-10-2022 passed in IA.No.62 of 2022 in OS.No.360 of 2017, on the file of the Addl. Senior Civil Judge, Narasaraopet, Guntur District, consequently allow the said IA.No.62 of 2022 as prayed for, and pass IA NO: 1 OF 2023 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings pursuant to the Judgment and Decree dated 16-03-2018 passed in OS.No.360 of 2017, on the file of the Addl. Senior Civil Judge, Narasaraopet, Guntur District, pending disposal of the main CRP, and to pass Counsel for the Petitioner: 1. VENKATA RAMA RAO KOTA Counsel for the Respondent(S): 1. G V S MEHAR KUMAR 3 The Court made the following order: Aggrieved by the order and decree, dated 14.10.2022, passed in Interlocutory Application No.62 of 2022 in Original Suit No.360 of 2017 on the file of the Court of Additional Senior Civil Judge, Narasaraopet, the present Civil Revision Petition is filed under Article 227 of the Constitution of India. 2. The petitioner herein is defendant No.2, respondent No.1 herein is the plaintiff and respondent Nos.2 to 6 herein are defendant Nos.1, 3 to 6 in O.S.No.360 of 2017 on the file of the Court of Additional Senior Civil Judge, Narasaraopet. 3. Respondent No.1 herein, being plaintiff, filed a suit in O.S.No.360 of 2017 on the file of the Court of Additional Senior Civil Judge, Narasaraopet for partition and the said suit was decreed ex parte. To set aside the ex parte decree, I.A.No.62 of 2022 was filed by defendant No.2, under Section 5 of the Limitation Act, seeking condonation of delay of 1425 days in filing the petition to set aside the ex parte decree. The said application was dismissed vide order dated 14.10.2022. Assailing the same, the present Civil Revision Petition has been filed. 4. Heard Sri Venkata Rama Rao Kota, learned counsel for the petitioner/defendant No.2 and Sri G.V.S.Mehar Kumar, learned counsel for respondent No.1/plaintiff. 5. Learned counsel for the petitioner, in elaboration to what has been stated in the grounds of revision and contents of the affidavit filed in support of 4 Interlocutory Application, contended that the petitioner/defendant No.2, along with his brothers (co-defendants), engaged a counsel in the suit before the Court below and filed vakalat. The counsel assured them that he would inform the next date of hearing for filing written statement. Consequently, the petitioner could not remain in contact with his counsel. Subsequently, the petitioner received notice in I.A.Nos.102 and 103 of 2019 filed by respondent No.1 for passing of final decree in terms of preliminary decree. Thereupon, the petitioner came to know that an ex parte decree had been passed in the suit on 16.03.2018. Thereafter, the petitioner filed I.A.No.62 of 2022 seeking condonation of delay of 1425 days in filing the petition to set aside the ex parte decree passed in the suit. He further contended that the petitioner’s counsel before the Court below did not inform the petitioner about the passing of ex parte decree and in the meantime, COVID pandemic broke down, which also prevented the petitioner from pursuing the case. He further contended that the Court below erroneously dismissed the said application without taking into consideration the reasons clearly mentioned in the affidavit filed in support of the Interlocutory application. If the application for condonation of delay to set aside the ex parte decree is not allowed, the petitioner would be deprived of an opportunity to contest the suit and his valuable rights would be defeated. He further submits that the Court below ought to have considered that no prejudice would be caused to respondent No.1/plaintiff if the said application was allowed, as the delay could be compensated by imposing costs. He 5 further submits that the petitioner has a good case on merits. Hence, prayed to allow the petition with costs. 6. On the other hand, learned counsel for the respondent No.1 submits that the petitioner failed to satisfactorily explain the delay and that the Court below has rightly dismissed the application by passing the impugned order. If this Court is inclined to interfere, costs may be imposed to the petitioner. 7. Perused the material available on record and considered the submissions made by learned counsel for the parties. 8. The petitioner was set ex parte in the suit filed before the Court below for partition. To set aside the ex parte decree, I.A.No.62 of 2022 was filed by the petitioner under Section 5 of the Limitation Act seeking condonation of delay of 1425 days in filing the petition under Order IX Rule 13. The said application was dismissed on the ground that the petitioner failed to show sufficient cause for not representing the matter for a period of more than 4½ years and that he was negligent in taking proper steps in the matter. 9. At this stage, it would be appropriate to refer to the judgment of Hon’ble Supreme Court in Robin Thapa v. Rohit Dora1, wherein it is held that: “8. Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible, adjudication be done on merits.” 1 2019(7)SCC 359 6 10. The Hon’ble Supreme Court in Ummer v. Pottengal Subida and others2, held that: “One cannot now dispute the legal proposition that the earlier view of this Court that the appellant was required to explain the delay of each day till the date of filing the appeal has since been diluted by the later decisions of this Court and is, therefore, held as no longer good law.” 11. This Court is inclined to apply the said principle in the present case as well. The Court below failed to consider as to what prejudice would be caused to respondent No.1, if the delay was condoned. Further, the rights of the parties are involved, as the suit is for partition. The reasons set out in the affidavit filed in support of the Interlocutory application were not properly considered by the Court below while dismissing the application. In view of the above, this Court is inclined to interfere with the order of the Court below and no substantial prejudice would be caused to respondent No.1, if the said application is allowed. The delay can be compensated by imposing costs to the petitioner. 12. Accordingly, the Civil Revision Petition is allowed and the order dated 14.10.2022 passed in Interlocutory Application No.62 of 2022 in O.S.No.360 of 2017 on the file of the Court of Additional Senior Civil Judge, Narasaraopet is set aside subject to the condition that the petitioner/defendant No.2 shall 2 (2018) 15 Supreme Court Cases 127 7 pay costs of Rs.10,000/- to respondent No.1/plaintiff. There shall be no order as to costs. As a sequel, all the pending miscellaneous applications are closed. ___________________________ JUSTICE RAVI CHEEMALAPATI Date: 03.02.2026 MP 8 202 THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI CIVIL REVISION PETITION NO:378 of 2023 Date: 03.02.2026 MP 9