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2001 DIGILAW 851 (AP)

Bathula Venkatamma v. Vaggu Mahendra Gupta

2001-08-09

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) THIS Civil Revision Petition is directed against the order made in I. A. No. 662 of 1996 in O. S. No. 128 of 1996 (sic. 1994) on the file of the Junior Civil Judge, Podili. The revision petitioner is the 1st defendant in the suit. The plaintiffs-respondents filed a suit for declaration of title and mandatory injunction relating to the plaint-schedule property. An ex parte decree was passed on 10-6-1996 and the revision petitioner-1st defendant filed I. A. No. 662 of 1996 to condone the delay of 150 days in filing an application to set aside the ex parte decree under Order IX Rule 13 of the Code of Civil procedure (for short the Code ) on the ground that the revision petitioner was suffering from Epilepsy and a medical certificate was also enclosed in this regard to explain sufficient cause. The application was resisted by the respondents-plaintiffs and ultimately the Court below had dismissed the application. Aggrieved by the same, the revision petitioner-1st defendant filed the present Revision. ( 2 ) SRI Meherchand Nori, learned Counsel representing the revision petitioner had submitted that the Court below had adopted technical approach in dealing with the application, though sufficient cause had been explained. The learned Counsel had also drawn my attention to the affidavit filed in support of the application and also the material placed before the Court below including the medical certificate. Learned counsel further contended that the nature of the suit itself is for declaration of title and mandatory injunction and though the delay was explained properly, the Court below had dismissed the application mainly on two grounds, the conduct of the party and also on the ground that the other defendants, who are on record, should have taken care to see that the matter was not decided ex parte. Learned Counsel had also explained that the 1st defendant is in no way concerned with the other defendants and hence the reasoning of the Court below on this aspect is erroneous. Learned counsel placed reliance on a decision of the Supreme Court in G. P. Srivastava v. R. K. Raizada and others wherein the apex court had observed that in matters of this nature, the approach of the Courts should be liberal and not technical. Learned counsel placed reliance on a decision of the Supreme Court in G. P. Srivastava v. R. K. Raizada and others wherein the apex court had observed that in matters of this nature, the approach of the Courts should be liberal and not technical. ( 3 ) SRI Sampath Prabhakar, learned counsel appearing for the respondents- plaintiffs had strenuously contended that the very conduct of the parties clearly goes to show that the revision petitioner is only bent upon prolonging the matter and absolutely there are no bona fides. Learned counsel also had drawn my attention to the relevant portion of the order of the Court below which is extracted as under:"originally the suit was filed on 29-10-94 and D-1 and D-3 appear on 20-4-95 and D-7 appeared on 14-7-95 whereas D-2, D-4, and D-6 appeared on 10-11-95 after they were set ex parte, and the ex parte order was set aside as per orders in LA. 291/95 and since then the matter was being posted from time to time for filing of their written statements. But the petitioners who are the defendants in O. S. 128/94 failed to file their written statements and the matter was posted for their written statements on 23-4-96 on imposition of costs Rs. 25. 00 by posting the matter to 3-6-96. , even then the petitioners failed to file the written statements on 3-6-96 and again the matter was posted to 10-6-96 on further costs of Rs. 20. 00 and the petitioners neither filed the written statement nor paid the costs even on 10-6-96 and were absent at the stage the petitioners were set ex parte and the suit was decreed on 10-6-96, which clearly shows that attitude of the petitioners in delaying the matter without having any bona fides and this petition apparently filed to procrastinate the proceedings without having any bona fides. " ( 4 ) LEARNED Counsel further contended that the finding recorded by the Court below is a clear finding of fact relating to sufficiency of cause and in view of the limitations imposed on the revisional Court in Section 115 of the Code, this is not a matter involving any jurisdictional error and hence it does not warrant any interference. The learned Counsel also had placed strong reliance on a decision of the supreme Court in P. K. Ramachandran v. State of Kerala and others and in State of kerala v. E. K. Kuriyipe and others and a decision of this Court in Chief Engineer, roads and Buildings, Hyderabad and others v. R. K. Engineers, Hyderabad, rep. by its managing Partner, B. Ramesh Reddy. ( 5 ) HAVING heard both the parties and on the material available on record, the question that has to be decided is whether there is sufficient cause explained by the revision petitioner within the meaning of section 5 of the Limitation Act. Even if there is some explanation relating to the sufficiency of cause, within the meaning of section 5 of the Limitation Act as explained by the revision petitioner, when the Court below had exercised a discretion and had dismissed the application, can an order of this nature be interfered with under Sec. 115 of the Code in view of the limitations imposed on the revisional Court. In Law of limitation, 2nd Edition by me, at page 121, while dealing with the aspect of sufficient cause , I had expressed the following opinion:"in Kichulippa v. Ramanujam ( (1902) 25 mad. 166 at 170), their Lordships of the Madras High Court observed: "sufficient cause" is evidently something more than "legally sufficient or sufficient according to the rules laid down in the law of limitation for if any case fell within these rules it would be governed thereby as in the case of suits and there would be no scope for the application of Section 5. "sufficient cause" seems to mean not only those circumstances (such as the court being closed, or time being spent in obtaining copies or the party being a minor or insane) which the law expressly recognises as extending the time but also such circumstances as are not expressly recognised but which may appear to the Court to be reasonable looking to all the facts of the case". The expression sufficient cause is to be liberally construed so as to advance substantial justice when no negligence, nor inaction nor want of bona fides is imputable to the appellant. The expression sufficient cause is to be liberally construed so as to advance substantial justice when no negligence, nor inaction nor want of bona fides is imputable to the appellant. " ( 6 ) IN Civil Revision Petition No. 1756 of 1999 I had already expressed my opinion that normally in matters of this nature, the matter should be decided only on merits unless it is inevitable and the conduct of the party is so blameworthy. In E. I. Kuriyipe s case (supra), no doubt the Apex Court observed that when an order has been made under Section 5 of the Limitation Act by the lower Court in exercise of its discretion, allowing or refusing an application to extend time, it may not be interfered with in revision unless the lower Court had acted with material irregularity or contrary to law or has come to that conclusion on no evidence. In p. K. Ramachandran s case (supra), the apex Court observed that the Courts have no power to extend the period of limitation on equitable grounds. In fact, the learned counsel for the respondents had strenuously contended by relying on these decisions that this Court cannot interfere while exercising the revisional jurisdiction under Section 115 of the Code. No doubt, the revisional jurisdiction under Section 115 of the Code is a limited jurisdiction and unless the ingredients specified under section 115 are satisfied, the revisional court cannot be inclined to interfere with the order made by a subordinate Court. ( 7 ) COMING to the facts of the case, here is a case where the revision petitioner is not concerned with the other defendants in the suit and the revision petitioner had filed an application to set aside the ex parte decree along with an application to condone the delay enclosing a medical certificate explaining the reason. The Court below, mainly taking the prior conduct of the party into consideration, disallowed the application. Apart from it, the other ground on which the application was dismissed is that the other defendants should have taken care of the litigation. In the circumstances explained supra, this reason may not stand to any rationale. The Court below, mainly taking the prior conduct of the party into consideration, disallowed the application. Apart from it, the other ground on which the application was dismissed is that the other defendants should have taken care of the litigation. In the circumstances explained supra, this reason may not stand to any rationale. ( 8 ) IN the light of the facts and circumstances, I am clearly of the opinion that the Court below had proceeded to decide the matter in an erroneous direction to the effect that the past conduct of the party is relevant and also to the effect that the other defendants should have taken care of the litigation. Both these grounds appear to be not relevant or sustainable in the light of the facts and circumstances of the case. In this view of the matter, even while exercising discretion, the Court is expected to record reasons in accordance with law and not reasons which may not be relevant for deciding a particular aspect which the court is expected to decide. In the present matter, while deciding sufficient cause within the meaning of Section 5 of the limitation Act, the reasons recorded by the court below are not sustainable reasons and hence there is illegality in exercise of jurisdiction vested in the Court below while making the said order and in this view of the matter, the impugned order is liable to be set aside. However, in the light of the facts and circumstances, I deem it fit to impose certain terms while setting aside the impugned order. ( 9 ) FOR the reasons recorded above, the impugned order dated 18-12-1998 passed in I. A. No. 662/96 in O. S. No. 128 of 1996 (sic. 1994) on the file of the Junior Civil judge, Podili is hereby set aside on condition of the revision petitioner-1st defendant paying costs of Rs. 500. 00 to mr. Sampath Prabhakar, learned Counsel representing the respondents-plaintiffs within a period of four weeks from to-day failing which the impugned order stands. ( 10 ) THE Civil Revision Petition is allowed to the extent indicated above.