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2002 DIGILAW 226 (AP)

Dilawer Furdous v. P. S. Rao

2002-02-14

G.ROHINI

body2002
G. ROHINI, J. ( 1 ) THIS Revision Petition is filed by the defendant who suffered an ex parte decree assailing the order of the Court below refusing to condone the delay in filing an application to set aside the ex parte decree. ( 2 ) THE facts which are necessary for determination of the question involved in this Revision Petition, are as follows: the respondent herein, filed O. S. No. 3636 of 1994 on the file of the Court of the III Assistant Judge, City Civil Court at hyderabad, against the revision petitioner seeking a decree for recovery of a sum of rs. 45,270/- with interest at 18% p. a. The revision Petitioner, hereinafter referred to as the defendant, filed written statement on 13-4-1995. After settlement of issues the suit was taken up for trial and on 11-3-1997 the evidence of the plaintiff was closed. The suit was adjourned to 21-3-1997 for the evidence of the defendant, since the defendant and her counsel were called absent, the evidence of the defendant was closed and the matter was adjourned to 31-3-1997. Again on 31-3-1997 the defendant and her counsel were called absent and therefore, the suit was adjourned to 29-4-1997 on which day judgment was pronounced granting a decree in favour of the plaintiff. In pursuance of the said decree, the plaintiff filed E. P. No. 138 of 1997 and it appears that movable property of the defendant was attached. At that stage the defendant filed an application under Order 9 Rule 13 of cpc seeking to set aside the ex parte decree dated 29-4-1997 and also I. A. No. 938 of 1997 under Section 5 of the Limitation Act to condone the delay of 59 days in filing the petition to set aside the ex parte decree. ( 3 ) IN the affidavit filed in support of i. A. NO. 938 of 1997, the defendant has stated that due to her illness, she had gone to gulbargha to see her son who is a medical student and again she fell sick, and therefore, she could not contact her counsel resulting in the ex parte decree on 29-4-1997. She also stated that on her return to hyderabad, she came to know about the ex parte decree and also the order in E. P. No. 138 of 1997 directing attachment of her movable property. She also stated that on her return to hyderabad, she came to know about the ex parte decree and also the order in E. P. No. 138 of 1997 directing attachment of her movable property. She stated that immediately she rushed to her counsel and since he was not available she contacted another advocate by name Mr. Raizuddin, and filed the application to set aside the ex parte decree as well as the petition to condone the delay. ( 4 ) THE plaintiff filed a counter denying the allegations made in the affidavit of the defendant particularly the averment that she was sick. He contended that there are no bona fides on the part of the defendant and alleged that it is only an attempt to gain time in the suit proceeding. ( 5 ) THE Court below after hearing both the parties by order dated 17-1-1997 dismissed I. A. No. 938 of 1997 holding that the conduct of the defendant in not prosecuting the suit with due diligence disentitles her to get the relief prayed for. The Court below also observed that it is incumbent on the part of the defendant to prove each day s delay and since the defendant has not disclosed in her affidavit as to when she fell ill and how long she was bed ridden and since she has not filed any medical certificate or the prescription in support of her claim the explanation offered by the her cannot be accepted and accordingly dismissed I. A. No. 938 of 1997. Aggrieved by the said order dated 17-11-1997 the defendant has come up with the present Revision Petition. ( 6 ) HEARD the learned Counsel for the petitioner as well as the learned Counsel for the respondent. ( 7 ) THE learned Counsel for the petitioner submits that the view expressed by the court below that under Section 5 of the limitation Act it is necessary for the petitioner to explain each day s delay is not correct. At any rate, the learned Counsel contends, that there is no reason to disbelieve the explanation offered by the defendant and the Court below ought not to have dismissed the application on the ground that she did not file any medical certificate in support of her case that she was ill and was unable to move out of the house. At any rate, the learned Counsel contends, that there is no reason to disbelieve the explanation offered by the defendant and the Court below ought not to have dismissed the application on the ground that she did not file any medical certificate in support of her case that she was ill and was unable to move out of the house. ( 8 ) ON the other hand, the learned counsel for the respondent submits that the suit was of the year 1994 and the defendant has successfully dragged on the matter on some pretext or the other. He contends that the defendant has deliberately failed to attend to the suit proceedings to gain time and that the Court below has rightly dismissed the application to condone the delay since the defendant has failed to show any sufficient cause for the delay as required under section 5 of the Limitation Act. ( 9 ) IT is true that the power conferred under Section 5 of the Limitation Act, 1963 to condone the delay is discretionary. However it has been consistently held by the Apex Court in a catena of decisions that while exercising the discretion under section 5 of the Limitation Act the expression sufficient cause should receive liberal construction. The Supreme Court in the case of Collector, Land Acquisition, anantnag v. Mst. Katiji, while holding that the expression "sufficient cause" employed by the Legislature in the Limitation Act is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of courts, further observed that every day s delay must be explained does not mean that a pedantic approach should be made and that the doctrine must be applied in a rational common sense pragmatic manner. ( 10 ) IT is also appropriate to refer to the following observations made by the Apex court in a recent decision in Vedabai v. Shantaram Baburao Patil, which are as follows:"in exercising discretion under Sec. 5 of the Limitation Act the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The courts has to exercise the discretion on the facts of each case keeping in mind that in construing the expression sufficient cause , the principle of advancing substantial justice is of prime importance. ( 11 ) FROM the order under Revision it is to be noted that the evidence of the plaintiff was closed on 11-3-1997 and the matter was posted for the evidence of the defendant on 23-3-1997. ft appears that on that day neither the defendant nor her Counsel were present. The-matter was adjourned to 31-3-1997 and again adjourned to 29-4-1997 on the ground of absence of defendant and an ex parte decree was passed on 29-4-1997. Thereafter the defendant filed an application under Order 9 Rule 13 of CPC with a petition to condone the delay of 59 days. In the affidavit filed in support of the petition filed under Section 5 of the limitation Act the defendant stated that she was unwell, and therefore she had been to gulbargh to see her son who is a medical student and there again she fell sick and could not contact her counsel and could not follow the proceedings in her case and that she came to know about the ex parte decree only after she returned to Hyderabad. Immediately she tried to contact her counsel and since he was not available, she took necessary steps through another Advocate for getting the ex parte decree set aside. The delay caused is admittedly 59 days and cannot be termed as inordinate. I am of the view that the explanation offered by the defendant ought to have been accepted adopting a liberal construction as held by the apex Court in a catena of decisions. The view expressed by the Court below that every day s delay should be explained cannot be approved in the facts and circumstances of the present case. I am of the view that the explanation offered by the defendant ought to have been accepted adopting a liberal construction as held by the apex Court in a catena of decisions. The view expressed by the Court below that every day s delay should be explained cannot be approved in the facts and circumstances of the present case. Accordingly, in my considered opinion the court below ought to have condoned the delay, however on imposing certain costs to compensate the plaintiff. It is true that the defendant has not furnished the dates and details as to her sickness and any evidence as to the treatment she received. But the facts and circumstances of the case do not warrant drawing a presumption that the delay was occasioned deliberately or on account of mala fides. ( 12 ) IN N. Balakrishnan v. M. Krishna- murthy, the Supreme Court has been pleased to observe that once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refused to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower Court. ( 13 ) IN my considered opinion, this is a fit case where the cause shown for the delay should be considered afresh by this Court in exercise of Revisional jurisdiction under section 115 of CPC. considering the facts and circumstances of the case in the light of the principles laid down by the Apex Court, i am of the opinion that this case deserves a liberal approach and accordingly, I hold that sufficient cause has been made out by the defendant/petitioner to condone the delay of 59 days in filing the application under Order 9 Rule 13 of CPC. However, I feel that the plaintiff/respondent must be compensated by way of costs for the expenses incurred by him towards the execution Proceedings initiated in furtherance of the decree. However, I feel that the plaintiff/respondent must be compensated by way of costs for the expenses incurred by him towards the execution Proceedings initiated in furtherance of the decree. ( 14 ) ACCORDINGLY, the order under revision is set aside and I. A. No. 938 of 1997 is allowed subject to the condition of the defendant depositing a sum of Rs. 2,000. 00 to the suit account towards costs to the plaintiff within three weeks from to-day. On such deposit the plaintiff is permitted to withdraw the said amount. ( 15 ) ACCORDINGLY the Civil Revision petition is allowed. There shall be no order as to costs.