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2009 DIGILAW 428 (AP)

Nagulapu Raju v. Tirupathi

2009-07-06

G.BHAVANI PRASAD

body2009
Judgment :- The civil revision petition is directed against the order of the Senior Civil Judge, Nirmal, dated 04-02-2009 in I.A. No.744 of 2006 in O.S. No.26 of 2003. I.A. No.744 of 2006 was filed to condone the delay of 252 days in filing the petition to set aside the ex parte decree and the defendant/petitioner claimed that due to her suffering from jaundice and severe fever from 10-12-2005 till 25-02-2006, she was set ex parte and an ex parte decree was passed against her in O.S. No.26 of 2003 on 13-02-2006. When the plaintiff/decree-holder filed E.P. No.6 of 2006 also, she could not file her counter on 01-11-2006 again due to severe fever from 10-08-2006 to 15-11-2006. Unfortunately, even her counsel was suffering from cancer undergoing treatment at Hyderabad and hence, she sought for condonation of delay in filing the petition to set aside the ex parte decree. The decree-holder opposed the request denying the allegations unsupported by any evidence and contended that the senior counsel engaged by the defendant is regularly attending the Court and the claim of the decree-holder was upheld in I.P. No.1 of 2003 filed by the defendant. The ex parte orders in the suit and the execution petition were passed by the Court after giving a number of opportunities on number of dates of hearing and hence, the plaintiff/decree-holder sought for dismissal of the petition. In the impugned order, the trial Court following 2004 (4) ALT 22.2 (DN OHC) holding that the Court has no power to extend the period of limitation on equitable grounds, if no sufficient grounds were made out to condone the delay, observed that the defendant, who did not file any documents in support of her contentions and did not explain the delay properly, cannot stand on merits. Noting the earlier litigation in I.P. No.1 of 2003 and the proceedings in the suit and the execution petition, in which the defendant did not avail the opportunities, the trial Court dismissed the petition without costs. Noting the earlier litigation in I.P. No.1 of 2003 and the proceedings in the suit and the execution petition, in which the defendant did not avail the opportunities, the trial Court dismissed the petition without costs. The defendant claims in this revision that Sri Hanmanth Reddy, her counsel, who died of cancer in January, 2006, did not inform her of the ex parte order and unfortunately, even Sri C. Bheem Rao, advocate engaged by her on the death of Hanmanth Reddy, also died in November, 2006, due to which she could not file the petition to set aside the ex parte decree till a delay of 252 days. The decree-holder/respondent in the counter-affidavit in the petition for stay herein contended that the revision petitioner appeared in the execution proceedings on 16-06-2006 and obtained adjournments till 01-11-2006 and hence, there was no explanation for the delay of 252 days. He also claimed that an appeal lies under Order XLIII Rule 1 (d) of the Code of Civil Procedure (for short "C.P.C.") against an order under Order IX Rule 13 C.P.C. rejecting to set aside an ex parte decree and in Divisional Engineer, APSEB v. Shaik Mohammed ( 1996 (3) ALT 365 ) and A.V.S. Prasad v. Satya Chits and Finance ( 2006 (6) ALT 14 ), a revision was held to be misconceived. Hence, the respondent sought for dismissal of the revision petition. Heard the learned counsel for both parties. In Divisional Engineer, APSEB v. Shaik Mohammed (1 supra), it was, of course, held that an appeal lies under Order XLIII Rule 1 (d) C.P.C. in a case where a petition under Order IX Rule 13 C.P.C. would get dismissed itself by virtue of Section 3 of the Limitation Act on the dismissal of the application under Section 5 of the Limitation Act. In A.V.S. Prasad v. Satya Chits and Finance (2 supra), the petition, which was dismissed, was a petition to set aside the ex parte decree itself under Order IX Rule 13 C.P.C., against which an appeal unambiguously lies under Order XLIII Rule 1 (d) C.P.C. While the second of the decisions has, thus, no application on facts and principle, the first of the decisions stands in contrast with the principles laid down in V. Haritha and another v. Kapil Chit Funds Private Limited ( 2004 (2) ALD 817 ). In that case also, the petition for condonation of delay was refused to be entertained and the delay was not condoned. Consequently, the main petition filed under Order IX Rule 13 C.P.C. was not registered at all. The learned Judge noted that in case of refusal to condone the delay, for all practical purposes, there will be two orders, one passed refusing to condone the delay and the other passed, although in consequence of the former order, rejecting the main application filed under Order IX Rule 13 C.P.C. The learned Judge observed that no appeal is provided for as against the former order and hence, a revision lies, though a right of appeal is conferred under Order XLIII Rule 1 (d) C.P.C., concerning the later order. Referring to various precedents, the learned Judge concluded that if for any reason, the Revisional Court comes to a conclusion that there is sufficient cause to condone the delay and the application filed in regard thereto shall have to be allowed, the consequential rejection order passed in the other application filed under Order IX Rule 13 C.P.C. will stand automatically cancelled notwithstanding the fact that no appeal has been filed against that order. This view of the learned Judge about the maintainability of a civil revision petition against an order refusing to condone the delay is the later view of this High Court from a Bench of coordinate strength and the well settled principle in the law of precedents is that in case of any conflict between Benches of equal strength in the same High Court on any principle, the later view has to be followed as the binding view. Even on principle, I respectfully agree with the reasoning in V. Haritha and another v. Kapil Chit Funds Private Limited (3 supra) and not Divisional Engineer, APSEB v. Shaik Mohammed (1 supra), as any right of appeal is a statutory right and not an inherent civil or fundamental right and unless specifically created by a statutory provision, there can be no inferential right of appeal. Order XLIII Rule 1 (d) C.P.C. specifically provides for an appeal against an order of rejection of an application under Order IX Rule 13 C.P.C. and not on a petition under Section 5 of the Limitation Act, which is a prelude or precondition for entertaining an application under Order IX Rule 13 C.P.C. The refusal of the first relief may invariably lead to rejection of the second relief, but if the relief of revision is available in respect of the former order, the same cannot be negated on the ground of a relief of appeal being available against the later order. Therefore, the contention that the revision does not lie against the impugned order, has to be negatived. It is true that the defendant/petitioner appeared through counsel in the suit and also in the execution proceedings and does not appear to be strictly vigilant and diligent in prosecuting her defence. Her claim that she was suffering from jaundice and severe fever from 10-12-2005 till 25-02-2006 and again with severe fever from 10-08-2006 to 15-11-2006, need not be straight away rejected, as her assertion and the plaintiff's denial in the affidavits is a case of oath against oath and as the parties did not adduce any oral or documentary evidence in support of their claims in the petition, which was solely decided on the pleadings. The claim of the revision petitioner that both her counsel, Sri Hanmanth Reddy and Sri C. Bheem Rao died in January, 2006 and November, 2006 respectively, was not disputed as a matter of fact and assuming that the senior of Sri Hanmanth Reddy was attending the Court, the claim that the revision petitioner engaged only Sri Hanmanth Reddy as her counsel also need not be straight away rejected. It is true that the delay of more than 250 days in approaching to have the ex parte decree set aside, is substantial, but it is well settled that the rules of procedure are intended to advance the cause of substantial justice, but not to punish the parties for their technical lapses. It is true that the delay of more than 250 days in approaching to have the ex parte decree set aside, is substantial, but it is well settled that the rules of procedure are intended to advance the cause of substantial justice, but not to punish the parties for their technical lapses. It is also well settled that existence of sufficient cause under Section 5 of the Limitation Act is always open to a liberal construction and if any inconvenience caused to the opposite party can be compensated by appropriate terms, such conditions should be imposed instead of refusing to determine the dispute on merits in accordance with law. The trial Court was obviously psychologically influenced due to the earlier dispute in I.P. No.1 of 2003 and the absence of diligence on the part of the defendant in defending herself in the suit and the execution proceedings in spite of repeated opportunities. It is true that extension of period of limitation cannot be on equitable grounds and the provisions of the Limitation Act should be strictly followed, but in construing the truth or otherwise of the grounds raised in support of the request for condonation of delay, the Court will not adopt a too rigid and technical approach, but will go by broad human probabilities arising out of the facts and circumstances, as is mandatorily done in every civil cause. Any strict proof beyond all reasonable doubt is not the norm in a civil dispute. Keeping the same in view and in the light of the undisputed deaths of the two counsel of the defendant during the relevant period and the probability of the defendant being sick at the relevant times, the delay has to be condoned on appropriate terms, in order to give a reasonable opportunity to the defendant to have her defence in the suit decided on merits. The learned counsel for the revision petitioner expressed readiness to deposit a substantial amount to the credit of the matter to show the bona fides of the defendant, the quantum offered being Rs.30,000/-, while the learned counsel for the respondent contended that it should be a minimum of Rs.50,000/-, withdrawable by the respondent without any conditions. The learned counsel for the revision petitioner expressed readiness to deposit a substantial amount to the credit of the matter to show the bona fides of the defendant, the quantum offered being Rs.30,000/-, while the learned counsel for the respondent contended that it should be a minimum of Rs.50,000/-, withdrawable by the respondent without any conditions. Keeping all the facts and circumstances in view, including the means of the revision petitioner, a deposit of Rs.35,000/- can be ordered, which the respondent can be permitted to withdraw without furnishing any security subject to the final result of the petition to set aside the ex parte decree and the consequential proceedings in the suit, if any. Accordingly, the order in I.A. No.744 of 2006 in O.S. No.26 of 2003, dated 04-02-2009 on the file of the Senior Civil Judge, Nirmal is set aside and the said I.A. No.744 of 2006 will be allowed on deposit of Rs.35,000/- to the credit of the matter before the trial Court by the defendant/petitioner within eight weeks from the date of this order and in default, the petition shall stand dismissed. On such deposit, the respondent/plaintiff will be entitled to withdraw the same without furnishing any security subject to the final result of the petition to set aside the ex parte decree and the consequential proceedings in the suit, if any. The civil revision petition is ordered accordingly.