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2005 DIGILAW 25 (AP)

Kavali Narnyana v. Kavali Chennamma

2005-01-19

L.NARASIMHA REDDY

body2005
L. NARASIMHA REDDY, J. ( 1 ) DEFENDANTS in O. S. No. 202 of 1991 on the file of Junior Civil Judge, mahabubnagar are the petitioners herein. An application filed by them to condone the delay in presenting a petition under Order 9 rule 13 C. P. C. was dismissed by the Trial court. Hence this revision. ( 2 ) THE respondent tiled the suit for the relief of partition and separate possession of the suit schedule properties, in the year 1991. The father of the petitioners viz. , balappa and the father of the respondents viz. , Chandrappa are brothers. The petitioners filed their written statement. They pleaded that the suit schedule property is their self-acquisition and that a partition has already taken place between Balappa and Chandrappa, in relation to joint family properties. Initially, the suit was dismissed for default on 29. 1. 1997. It was restored on 13. 11. 1998. Soon thereafter, an ex parte preliminary decree was passed on 25. 11. 1998. ( 3 ) PETITIONERS filed an application under order 9 Rule 13 C. P. C. to set aside the ex parte preliminary decree dated 25. 11. 1998. Since there was delay in submitting the same, they filed IA No. 835 of 2003 under section 5 of the Limitation Act. They pleaded that they engaged an advocate viz. , sekhar Reddy in the suit in the year 1992 and the notice in application filed by the respondent under Order 9 Rule 9 C. P. C. to set aside the order dismissing the suit for default was served upon him. It is their case that the said advocate died in may 1988 even while the LA. was pending, and despite the same, the Trial Court proceeded with the matter without issuing any notice to them. They also alleged that on 3. 6. 1999 they received summons in i. A. No. 336 of 1999, filed for passing of final decree and they engaged Sri N. B. Venkatesh to represent them. According to them, their Counsel informed them to the effect that he would take necessary steps in the matter and as and when necessity arises he would intimate them through a letter. They contended that they did not receive any communication and ultimately when they found that a commissioner was visiting their property, they verified the matter with their counsel. According to them, their Counsel informed them to the effect that he would take necessary steps in the matter and as and when necessity arises he would intimate them through a letter. They contended that they did not receive any communication and ultimately when they found that a commissioner was visiting their property, they verified the matter with their counsel. He is said to have informed them that a letter addressed by him was not responded to, and soon thereafter, the petition is filed. ( 4 ) THE respondent filed a counter-affidavit resisting the application. According to her, the petitioners remained indifferent even after receiving the notice in IA No. 336 of 1999, in the final decree proceedings. She pleaded that such an enormous delay was not explained, much less to the satisfaction of the Court. Through the order under revision, the Trial Court dismissed the LA. ( 5 ) SRI K, Sitaram, learned Counsel for the petitioners, submits that the petitioners were vigilant and careful through out the proceedings, as is evident from the fact that they filed the written statement within the stipulated time. He submits that the petitioners were not conversant with the court procedure and soon after they received a notice in LA. No. 336 of 1999, they engaged an advocate to take necessary steps. He submits that the petitioners filed the affidavit of the advocate whom they engaged in LA. No. 336 of 1999 and it is clear that necessary steps could not be taken on account of communication gap between the said Counsel and the petitioners. He urges that though the delay may appear to be enormous, it is liable to be condoned, having regard to the facts of the case. ( 6 ) SRI K. Srinivas, learned Counsel for the respondent, on the other hand, submits that the very application filed by the petitioners was not maintainable, for the reason that two prayers namely the one for condonation of delay and the other to set aside the ex parte preliminary decree were made in it, contrary to Rule 55 of civil Rules of Practice. He submits that whatever may have been the circumstances for the petitioners in not being aware of the ex parte preliminary decree dated 25. 11. 1998 till they were served with notice in I. A. No. 336 of 1999 on 3. 6. He submits that whatever may have been the circumstances for the petitioners in not being aware of the ex parte preliminary decree dated 25. 11. 1998 till they were served with notice in I. A. No. 336 of 1999 on 3. 6. 1999, there does not exist any justification for them in not taking necessary steps thereafter. He contends that it is the duty of the petitioners to contact their Counsel and they cannot have the luxury of engaging him and leaving the matter at that. Relying upon several judgments rendered by the Supreme Court as well as this Court, he submits that the delay of such magnitude cannot be condoned. ( 7 ) FROM the contentions of both the parties, two aspects fall for consideration in this revision, namely (a) whether it is open to a party to seek the relief of condonation of delay and setting aside of the ex parte preliminary decree in one and the same application; and (b) whether the delay of 1756 days in filing the application to set aside the ex parte preliminary decree dated 25. 11. 1998 is liable to be condoned. ( 8 ) IN the facts and circumstances referred to above, the petitioners filed an application to condone the delay. In the affidavit, extensive reference was made to the facts commencing from the date of receipt of summons in the suit till the date of filing of the application, In the petition filed by them, the petitioners prayed for a combined relief of condonation of delay and setting aside of the ex parte preliminary decree. Though the Trial Court treated the application as the one filed under Section 5 of the Limitation Act alone, it has to be proceeded as though it is a common application, since no separate application was filed under Order 9 Rule 13 C. P. C. ( 9 ) IT is true that Rule 55 of the Civil rules of Practice mandates that separate application for each distinct prayer shall have to be filed. If several reliefs are claimed in the same application, the Court may direct the applicant to restrict it to one such relief. An exception to this mandate is where one relief claimed in that application is consequential to the other. If several reliefs are claimed in the same application, the Court may direct the applicant to restrict it to one such relief. An exception to this mandate is where one relief claimed in that application is consequential to the other. It is beneficial to extract Rule 55 and it reads as under:"separate Application fur each distinct prayer: There shall be separate application in respect of each distinct relief prayed for. When several reliefs are combined in one application, the Court may direct the applicant to confine the application only to one of such reliefs unless the reliefs are consequential and to file a separate application in respect of each of the others. From a reading of the same, it is evident that filing of individual applications for separate reliefs is not a universal principle. Much would depend on the nature of reliefs. In the matter of filing of applications, either under Rule 9 or 13 of Order 9 C. P. C. , condonation of delay, when ever such applications arc filed beyond the stipulated period of limitation, is interconnected to the main relief, namely to set aside the order dismissing the suit for default or to set aside the ex parte decree. In many cases, the grounds, which are found to be sufficient for condonation of delay, are treated as holding good for the other or consequential relief to set aside the orders dismissing the suit for default or an ex parte decree. (See V, Haritta and another v. Kapil Chit Funds Pvt,, Limited and others, 2004 (2) ALD 817 ). These two reliefs are so inter- connected with each other that one cannot exist in the absence of the other. For example, mere condonation of delay without consideration of the application under Rules 9 and 13 of Order 9 c. P. C. , is of no use. Similarly, unless an application under Section 5 of the Limitation act is considered, and an appropriate order is passed therein, the applications filed under Order 9 cannot be taken up at all. Therefore, they squarely fall into the category of "consequential" reliefs, which are exempted from the requirement of Rule 55 of Civil Rules of Practice. ( 10 ) FURTHER, in M. Narasimha Reddy v. Began Samuel, 2002 (6) ALD 473 = 2002 (5) ALT 766 , after referring to the judgment in M. A, Qader v. Md. Therefore, they squarely fall into the category of "consequential" reliefs, which are exempted from the requirement of Rule 55 of Civil Rules of Practice. ( 10 ) FURTHER, in M. Narasimha Reddy v. Began Samuel, 2002 (6) ALD 473 = 2002 (5) ALT 766 , after referring to the judgment in M. A, Qader v. Md. Azmat ali, 1988 (1) ALT 783, this Court held as under:"from the above it is clear that when the reasons shown in the affidavits filed in support of the applications filed under order 9 Rule 13 and under Section 5 of the limitation Act, are one and the same, no separate application is required to be filed under Section 5 of the Limitation Act and it is a matter of satisfaction of the court to exercise its jurisdiction basing on the facts and circumstances before it. "therefore, the objection raised by the respondent for the maintainability of the application filed by the petitioners, cannot be sustained. ( 11 ) NOW remains the question as to whether the petitioners offered proper explanation for the condonation of delay. For the most part of it, condonation of delay, particularly in the matter of filing the applications to set aside the ex pane decrees or orders dismissing the suit for default, is in the realm of discretion. It is impossible to lay any hard and fast rule indicating the circumstances under which the relief of condonation of delay can be granted or denied. The broad principle that emerges from the various decisions rendered by the Supreme Court and the High Courts is to the effect that the parties should be permitted or made to litigate the matter on merits, unless they are shown to have remained indifferent or negligent. While meager delay, if not explained properly may not be condoned; enormous delay can be condoned, if the explanation is proper, cogent and to the satisfaction of the Court, it is not impermissible to take the totality of the circumstances into account while dealing with such applications. ( 12 ) IN the instant case, the suit was filed way back in the year 1991. The petitioners responded promptly and filed their written statement. Six years later, the suit was dismissed for default on 29. 1. 1997. The respondent, no doubt, filed LA. No. 165 of 1997 on the very next day to set aside the order of dismissal. The petitioners responded promptly and filed their written statement. Six years later, the suit was dismissed for default on 29. 1. 1997. The respondent, no doubt, filed LA. No. 165 of 1997 on the very next day to set aside the order of dismissal. Notice in this LA. was served upon the Counsel for the petitioners, by name, Shekhar Reddy. It is not in dispute that he died in May, 1998. The record discloses that LA. No. 165 of 1997 was allowed on 27. 10. 1998, subject to payment of costs of Rs. 30/. The costs are said to have been paid on 13. 11. 1998. When the advocate of the petitioners died and the petitioners were not present in the Court, it is not known as to whom the costs were paid. The suit was restored to file on 13. 11. 1998. The Trial Court did not choose to notice the fact that the advocate engaged by the petitioners expired. Six days thereafter, the suit was decreed ex pane on 25. 11. 1998. ( 13 ) THE petitioners received summons in the final decree proceedings, LA. No. 336 of 1999, on 3. 6. 1999. They engaged an advocate by name, N. B. Venkatesh. They were not even aware that an ex parte preliminary decree was passed. They left the entire matter to be taken care of, by their advocate. Jt was specifically pleaded that their advocate informed that as and when their presence is necessary he would address a letter. If this were to have been their self-serving assertion, not supported by any other material, it would have been difficult to accept the plea of the petitioners. Their advocate, viz. , N. B. Venkatesh filed an affidavit. He stated that he addressed a letter to the petitioners in the year 2000, but it was returned with an endorsement that the petitioners are not available. He has also stated that the petitioners came to him thereafter only in the month of September 2003. The respondent did not place any material before the Trial Court or this Court to disbelieve the version presented by the petitioners and supported by the affidavit filed by their advocate. ( 14 ) A reading of the order under revision discloses that the Trial Court was impressed mainly by the fact that the petitioners changed their advocate. The respondent did not place any material before the Trial Court or this Court to disbelieve the version presented by the petitioners and supported by the affidavit filed by their advocate. ( 14 ) A reading of the order under revision discloses that the Trial Court was impressed mainly by the fact that the petitioners changed their advocate. It did not realize that the first advocate engaged by them died in the year 1998, the second advocate, though filed vakalat on 14. 7. 1999 in I. A. No. 336 of 1999, did not take any further steps and they were left with no alternative except to approach another. The truth of the version presented by the petitioners is evident from the fact that even after being disengaged by the petitioners herein, their advocate Sri Venkatesh had sworn to an affidavit supporting the version of the petitioners. ( 15 ) LEARNED Counsel for the respondent relied upon a judgment of the Supreme Court in P. K. Ramachandran v. State of Kerala and another, AIR 1998 SC 2276 . In that case, the High Court condoned the delay of 565 days in filing an appeal arising out of an arbitration. The delay was condoned without assigning any reasons. The order of the high Court was extracted in the judgment of the Supreme Court. The only reason furnished by the High Court in condoning such an enormous delay reads as under:"but taking into consideration the averments contained in the affidavit filed in support of the petition to condone the delay, we are inclined to allow the petition. The petition stands allowed. "it hardly needs any emphasis that the above observation cannot be construed as a compliance with Section 5 of the Limitation act. Condonation of delay is not a matter of course and it is to be guided by proper reasoning and is to depend on the satisfaction of the Court. It was in this context that the Supreme Court had set aside the order of the High Court. In New india Assurance Co. Limited v. G. Sarada prasad, 2001 (2) ALD 161 (DB) = 2001 (2) ALT 100 (DB), relied upon by the respondent, a Division Bench of this Court refused to condone the delay of 1047 days in filing letters patent appeal against the judgment in CMA. In New india Assurance Co. Limited v. G. Sarada prasad, 2001 (2) ALD 161 (DB) = 2001 (2) ALT 100 (DB), relied upon by the respondent, a Division Bench of this Court refused to condone the delay of 1047 days in filing letters patent appeal against the judgment in CMA. Taking note of the fact that CMA was decided with the participation of both the parties, and the appellant in the LPA being a Nationalized insurance Company did not lack any assistance or wherewithal in presenting the appeal, the Bench found that the delay was not properly explained. ( 16 ) ANOTHER decision relied upon by the respondent is Sarwar Bee v. Vila bikshapathi, 2003 (6) ALD (NOC) 73 = 2003 (3) ALT 503 . In that case, the order of the Trial Court in refusing to condone the delay of 1334 days to set aside the ex parte preliminary decree was upheld. Apart from the extent of delay, a factor that weighed with the Court was that even after the petitioner therein was granted the liberty to file an application, through an order of the High Court dated 21. 12. 2000, the petitioner did not move for over one and half years. The same is evident from Para 10 of that judgment. "an important aspect of the matter is that though this Court permitted the petitioner to work out her remedies against ex pane decree through its order dated 21-12-2000, the application to set aside the ex parts decree came to be file only on 6. 6. 2002, by which time there was a delay of nearly 1334 days. Hardly any explanation was offered for not filing an application for over a period of one and half years subsequent to the dismissal of the CRP. The Trial Court had taken all these aspects into account and had dismissed the I. A. "it was in that context that the delay was refused to be condoned. The ratio laid down in the above cases, does not apply to the facts of the present case. The instant case is distinguishable on facts. The delay of disposal of the suit filed in the year 1991 is mostly attributable to the respondent. An ex pane preliminary decree was passed against the petitioners after the expiry of their Counsel and without any knowledge to them. The instant case is distinguishable on facts. The delay of disposal of the suit filed in the year 1991 is mostly attributable to the respondent. An ex pane preliminary decree was passed against the petitioners after the expiry of their Counsel and without any knowledge to them. The petitioners cannot be expected to keep a close watch on the case for decades together. It is only professional and seasonal litigants that pursue the matters with utmost attention. It is not as if the respondent suffered any detriment on account of the delay. Even as of now, the proceedings are pending at the stage of final decree. The truth or otherwise of the plea of the petitioners as to prior partition and the subject-matter of the suit being their self-acquired properties, needs to be dealt with on merits. The respondent herself was responsible for the delay of years together. She cannot insist that she should be extended the benefits of the ex parte order to the detriment of the petitioners. ( 17 ) THE delay, which appears to be enormous, on the face of it, was caused mostly on account of the death of the advocate, who was first engaged by the petitioners, and lack of proper communication from their advocate engaged thereafter. The suit itself was filed for partition of the shares of the father of the respondent on the one hand and the father of the petitioners on the other. She has taken decades to file the suit and the disposal of the suit was delayed for years together on account of her own inaction. On condonation of delay, if at all anything, the matter would be decided on merits and no actual detriment can be said to have been suffered by the respondent. The inconvenience, if any, caused to the petitioners can be compensated by awarding costs. ( 18 ) FOR the foregoing reasons, the civil revision petition is allowed and the order passed by the Trial Court in IA No. 835 of 2003 dated 15-7-2004 is set aside. Since this Court found that the delay was properly explained, IA No. 835 of 2003 is allowed, subject to the condition that the petitioners pay a sum of Rs. 2,000/- (Rupees Two thousand only) to the respondent through her Counsel in this Court, within one week from today. Since this Court found that the delay was properly explained, IA No. 835 of 2003 is allowed, subject to the condition that the petitioners pay a sum of Rs. 2,000/- (Rupees Two thousand only) to the respondent through her Counsel in this Court, within one week from today. In view of the fact that the reasons pleaded for condonation of delay and setting aside the ex parte preliminary decree are one and the same, the ex parte preliminary decree dated 25. 11. 1998 is also set aside. On complying with the conditions, the petitioners shall report to the Trial Court as to the readiness to adduce their evidence on 1. 2. 2005 to which date, the suit shall stand posted. There shall be no order as to costs.