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2011 DIGILAW 201 (AP)

G. Hanumantha Rao v. L. V. Subbaiah

2011-03-08

L.NARASIMHA REDDY

body2011
Judgment The respondent presented a plaint in the Court of Principal Junior Civil Judge, Dhone, arraying the petitioner herein as sole defendant, claiming the relief of recovery of money, on the basis of a promissory note, 19.03.2001. The plaint was returned on 23.03.2004, on the ground that adequate Court fee was not paid; fixing seven days time for compliance with the objection. However, the respondent represented the plaint only about 41/2 years thereafter. He filed I.A.No.743 of 2008 under Section 151 C.P.C., with a prayer to condone the delay. The trial Court ordered notice to the petitioner. He filed a counter opposing the application. It was stated that the issue pertaining to the promissory note, was resolved between the parties and that the suit was filed with a malicious intention. He further pleaded that the delay is enormous and it cannot be condoned at all. The trial Court allowed the I.A., through order dated 01.05.2010. The petitioner challenges the same. Sri C.Prakash Reddy, learned counsel for the petitioner, submits that the trial Court recorded a clear finding to the effect that the reasons pleaded by the respondent for condonation of such enormous delay, are unbelievable and still the I.A., was allowed. He contends that though the Court would adopt a liberal approach in condonation of delay in representation of proceedings, it cannot be to the extent of defeating the very concept of limitation. Sri K.Raghuveer, learned counsel for the respondent, on the other hand, submits that it is always on the discretion of the Court to condone the delay in representation and that the respondent could not represent the plaint within time, on account of the communication gap between himself and his counsel in the trial Court. He places reliance upon the judgments rendered by this Court in M/s.Giridhari Auto Finance Private Limited, Khammam v. Gudla Hari Babu 2003 (3) L.S. 431 (D.B.) and Sivishi Associates and others v. Jagadeeshwari Agencies 2006 (2) ALT 704 . The respondent intended to file the suit against the petitioner for recovery of amount, on the basis of promissory note dated 19.03.2001. The plaint was presented on 19.03.2004, without paying the stipulated Court fee. Naturally, the plaint was returned by giving seven days time to the respondent to pay the deficit Court fee. The respondent intended to file the suit against the petitioner for recovery of amount, on the basis of promissory note dated 19.03.2001. The plaint was presented on 19.03.2004, without paying the stipulated Court fee. Naturally, the plaint was returned by giving seven days time to the respondent to pay the deficit Court fee. It was only after 41/2 years that the respondent represented the plaint, together with an application filed under Section 151 C.P.C., with a prayer to condone the delay. Obviously because of the huge extent of delay involved in the matter, the trial Court issued a notice to the petitioner, though in the ordinary course of things the defendant in a suit is not heard until it is numbered. The only reason pleaded by the respondent for condonation of such a delay was that he lost communication with his counsel due to his personal work pressure. Except this, no other reason stated. The application was opposed by the petitioner by raising several grounds. The trial Court passed an order on 01.05.2010, condoning the delay. In the last paragraph of the order, the trial Court summed up its conclusions. Though the sentences are not properly worded, the gist of discussion is that the plea of the respondent that he lost the communication with his counsel is unbelievable and that once he has entrusted the matter to his counsel, he was under obligation to be in touch with him from time to time, at least once in six months or one year and it is highly improbable that the respondent did not have communication with his counsel for a period of 1687 days. Having said this, learned Judge condoned the delay on the only ground that the deficit Court fee has been paid and he felt it appropriate to adjudicate the matter on merits. The condonation of delay in representation is always in the discretion of the Court and hardly the opposite party would have any say in the matter. It is not uncommon that the plaints, applications or appeals presented before the Courts, are returned with objections duly stipulating time for compliance and that the parties or their advocates take more time than the stipulated one to comply with the objections. Instances are not lacking where delays of huge extents are also condoned. Much, however, would depend upon the facts and circumstances of the case. Instances are not lacking where delays of huge extents are also condoned. Much, however, would depend upon the facts and circumstances of the case. A different approach needs to be adopted for condonation of delay in representation, in respect of original proceedings on the one hand and appeals and other proceedings, on the other. The reason is that, in case of original proceedings, the party has to institute the same before expiry of period of limitation and there shall not be any scope for condonation of delay. When the institution itself is patently defective, serious doubt would arise as to whether they have been validly presented within the period of limitation. In case of appeals the situation is different. The proceedings were already instituted validly and adjudication has been handed over by the trial Court. The delay in representation of these two categories of proceedings cannot be viewed from the same perspective. Take for instance, the presentation of a suit, for which the limitation prescribed is three years. It is only when the suit is validly instituted, that it can be said to have been filed within the period of limitation. Procedural errors noticed in the plaint can certainly be rectified within a reasonable time, even if the plaint was presented on the last date of limitation. However, the facility created by law for rectification of procedural defects, cannot be stretched to such an extent as to defeat the very concept of limitation. If a plaint is presented by paying a paltry sum as Court fee and no steps are taken for rectification of the same, within a reasonable time, it would be difficult to stop the limitation from running. Though no hard and fast rule can be laid, stipulating the extent of delay in representation of original proceedings that can be condoned, this much can be said that if the delay exceeds the original period of limitation stipulated for the suit, the application can be straight away rejected. This is not to suggest the delay up to that extent can be condoned. Even if best of the reasons exist, the delay cannot be condoned beyond three years in a suit for recovery of money. In the instant case, the delay is about 41/2 years i.e. 11/2 years more than the original period itself. This is not to suggest the delay up to that extent can be condoned. Even if best of the reasons exist, the delay cannot be condoned beyond three years in a suit for recovery of money. In the instant case, the delay is about 41/2 years i.e. 11/2 years more than the original period itself. It may be true that the parameters for condonation of delay in the application filed under Section 5 of the Limitation Act cannot be applied with the same vigour for condonation of delay in a representation, filed under Section 151 C.P.C. All the same, the delay in representation cannot be condoned just for the aof it. Notwithstanding the indulgence shown by the Courts in such matters, it must be evident that the party or their counsel have taken necessary steps for compliance with objection and that the delay occurred on account of certain valid reasons. If the respondent has chosen not to contact his advocate for 41/2 years or if his counsel has just forgotten about the matter, once the plaint was returned, the Court cannot condone delay of such a magnitude just for the asking of it. Condonation of delay in representation cannot be converted into a device to defeat the very vigour of the law of limitation, much less to justify the presentation of a totally imperfect and untenable proceedings and for to forget about it. It cannot be ascribed the force of stopping the period of limitation to run. The judgments relied upon by the respondent are to the effect that whenever deficit Court fee is paid, after the period of limitation, or with the permission of the Court, it shall have the same force as though it was paid on the date of presentation of the proceedings. That not at all is the controversy in the instant case. The question is as to whether there was justification for the trial Court in condoning the delay of 1687 days in representation of the plaint. The C.R.P. is accordingly allowed. There shall be no order as costs.