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Andhra High Court · body

2011 DIGILAW 620 (AP)

V. Linga Reddy v. V. Ram Reddy

2011-08-10

G.ROHINI

body2011
Judgment : 1. The Revision petitioners are the plaintiffs in O.S.No.7 of 1993 on the file of the Court of the Junior Civil Judge, Ibrahimpatnam, R.R. District. The suit was filed for declaration of title in respect of the plaint D-schedule property as well as for perpetual injunction. On receipt of suit summons, appearance was entered on behalf of the defendants on 3.3.1993. However as they failed to file the written statement, the defendants were set ex parte on 9.2.1994 and thereafter by judgment dated 23.08.1995, the suit was decreed as prayed for with costs. Long thereafter, the respondents herein, who are the defendants and the legal representatives of some of the deceased defendants, filed I.A.No.413 of 2009 under Order 9 Rule 13 of C.P.C. to set aside the ex parte decree, dated 23.08.1995. They also filed I.A.No.412 of 2009 under Section 5 of the Limitation Act, 1963 to condone the delay of 5082 days in filing the application under Order 9 Rule 13 of C.P.C. After hearing both the parties, the Court below by order dated 27.04.2011 allowed both I.A.Nos.412 & 413 of 2009 subject to payment of costs of Rs.3,000/-. 2. Aggrieved by the said common order, dated 27.04.2011, the present Civil Revision Petition is filed by the plaintiffs. 3. I have heard the learned counsel for both the parties and perused the material available on record. 4. The learned counsel for the petitioners vehemently contended that the Court below committed a grave error in condoning the inordinate delay of 14 years accepting the vague plea that the defendants came to know about the decree only when the plaintiffs filed an application before the Tahsildar for mutation of the names. While submitting that in view of the admitted fact that the suit summons were duly served on the defendants the burden was very heavy on the defendants to prove that they were prevented by sufficient cause from appearing when the suit was called for hearing, the learned counsel further contended that the defendants had miserably failed to discharge the burden and therefore the Court below ought to have dismissed the applications. In support of his submission, the learned counsel relied upon a decision of the Supreme Court in PARIMAL v. VEENA ( (2011) 3 SCC 545 ). In support of his submission, the learned counsel relied upon a decision of the Supreme Court in PARIMAL v. VEENA ( (2011) 3 SCC 545 ). It is true that there is an inordinate delay of 5082 days in filing the application under Order 9 Rule 13 of CPC. However the law is well settled that length of delay is no matter, but the acceptability of the explanation is the only criterion [vide (1998) 7 SCC 123 (N. BALAKRISHNAN v. M. KRISHNA MURTHY)]. It is also a well-settled principle that the expression ‘sufficient cause’ under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice and what constitutes sufficient cause always depends on the facts and circumstances of a particular case. Hence the application need not be rejected merely on the ground of inordinate delay, but the test shall be whether sufficient cause is made out for the delay. 5. In the instant case, there are altogether 7 defendants. The defendant No.2 is the husband of the defendant No.1 and father of the defendants 3 to 7. Admittedly the suit summons were served on them and appearance was entered on their behalf by an advocate S. Vishnuvardhan Reddy. However it is the specific case of the defendants that the said advocate who was engaged by the defendant No.2 died in a road accident. It was pleaded by the defendants that after the death of the defendant No.2, the other defendants had no knowledge about the suit proceedings and that they came to know about the ex parte decree only on 26.7.2009 when they received the notices issued by the Tahsildar on the application filed by the plaintiffs for implementation of the decree and immediately thereafter the applications for setting aside the ex parte decree and condonation of delay were filed within one month from the date of knowledge. 6. The death of both the defendant No.2 and the counsel who entered appearance on behalf of the defendants is not in dispute. Though the plaintiffs opposed the applications by filing a counter, except contending that there was an inordinate delay of more than 5000 days and that having engaged the advocate, it was the duty of the defendants to enquire from time to time as to the suit proceedings, there was no allegation of deliberate inaction to gain time. 7. Though the plaintiffs opposed the applications by filing a counter, except contending that there was an inordinate delay of more than 5000 days and that having engaged the advocate, it was the duty of the defendants to enquire from time to time as to the suit proceedings, there was no allegation of deliberate inaction to gain time. 7. Having regard to the facts and circumstances of the case, the Court below while recording its satisfaction as to the sufficiency of the explanation for the whole period of delay, thought it fit to condone the delay on imposing costs. The said discretion exercised by the Court below on application of mind to the facts and circumstances of the case, in my considered opinion, cannot be termed as arbitrary or perverse warranting interference by this Court. As held in N. BALAKRISHNAN v. M. KRISHNA MURTHY [ (1998) 7 SCC 123 ] 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. 8. In PARIMAL’S case (1 supra) relied upon by the learned counsel for the petitioner, the Apex Court was dealing with a case where the respondent refused to receive the summons and thereafter the summons were served by paper publication. In spite of that, the respondent remained ex parte resulting in ex parte judgment. Four years thereafter, the respondent moved an application under Order 9 Rule 13 of CPC alleging that the ex parte decree had been obtained by fraud and collusion with the postman etc. The ratio laid down in the said decision on interpretation of the expression ‘sufficient cause’ under Order 9 Rule 13 of CPC, particularly in the light of the proviso to Rule 13 has no application to the facts and circumstances of the case on hand. 9. The other decision cited by the learned counsel for the petitioner i.e., S. SEKHAR BABU v. Y. RAMAKRISHNA REDDY ( 2008 (1) ALT 475 ) has also no bearing on the issue involved in this case. In fact this is a case where the defendants filed two separate applications; one for setting aside the ex parte decree and the other for condonation of delay. In fact this is a case where the defendants filed two separate applications; one for setting aside the ex parte decree and the other for condonation of delay. The explanation offered by the defendants that they had no knowledge about the suit proceedings being the same for both the applications, the Court below cannot be said to have committed any error in allowing both the applications by a common order. 10. For the aforesaid reasons, the interference by this Court is not warranted and accordingly the Civil Revision Petition is dismissed. No costs.