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2013 DIGILAW 1104 (AP)

Yerramsetti Mangayyamma v. Medisetti Abbai

2013-12-04

M.S.RAMACHANDRA RAO

body2013
JUDGMENT This Civil Revision Petition is filed challenging the order dt.18-04-2006 in I.A.No.588 of 2003 in O.S.No.26 of 1993 on the file of the Senior Civil Judge, Peddapuram. 2. The petitioner herein is the plaintiff in the suit. She filed the above suit as an indigent person for declaration of her title and for recovery of possession of the plaint schedule property. It was numbered as O.P.No.125 of 1988 on the file of Sub-Court, Rajahmundry, later transferred to the Senior Civil Judge Court, Peddapuram and renumbered as O.P.No.312 of 1991. She engaged Sri S.Seshagiri Rao, Advocate at Peddapuram. As the said counsel was not attending the Court, a notice dt.24.6.2000 was issued by the Court for her appearance on 18-07-2000 as the suit was coming for trial. One Sri P.Suryanarayana Murthy, Advocate represented on behalf of the petitioner at the request of a person known to the petitioner for adjournment. The suit was adjourned to 18-07-2000 by imposing costs of Rs.100/-. On 18-07-2000 costs were not paid and the petitioner also absent. There was no representation on her behalf. Therefore, the suit was dismissed for non-prosecution on 18-07-2000. 3. On 24-06-2003, she filed IA.588/2003, a petition under Section 5 of the Limitation Act,1963 for condonation of delay of 1039 days in filing a petition to set aside the order dt.18.7.2000 dismissing the suit and also another petition under Order 9 Rule 9 of the Code of Civil Procedure, 1908 (for short “the Code”) for setting it aside. 4. 3. On 24-06-2003, she filed IA.588/2003, a petition under Section 5 of the Limitation Act,1963 for condonation of delay of 1039 days in filing a petition to set aside the order dt.18.7.2000 dismissing the suit and also another petition under Order 9 Rule 9 of the Code of Civil Procedure, 1908 (for short “the Code”) for setting it aside. 4. In the affidavit filed in support of IA No.588/2003, the petitioner stated that she could not attend the Court on 18-07-2000 as she was suffering from severe jaundice from 01-07-2000 and she was advised bed rest from 01-07-2000 to 13-01-2001; that she wanted to come to Peddapuram to enquire about the case but her relative passed away and so she went for consoling her relatives and came back after 15 days; thereafter her children fell ill and they could not move from bed till 02-02-2001; from 03-02-2001 she suffered from severe joint pains and blood pressure and was advised bed rest till 02-06-2003 and also to take treatment for heart ailment; she could not move from bed and there was nobody to look after her Court affairs till 03-06-2003; that on account of old age, she also lost her vision and was unable to move from her house; that she has a strong case and fair chances of succeeding the suit, if it is restored. She pleaded that she had no male assistance to look after her Court affairs and her children are not worldly wise. She prayed for condonation of this period of delay. 5. Counter affidavit was filed by respondent Nos.1, 4 and 5 denying these allegations and contending that the petitioner was aware of all the proceedings, was watching and purposely allowed the suit to be dismissed for non-prosecution knowing fully well that she has no case at all. It is stated that the delay is willful and there is negligence on the part of petitioner in taking steps to file the application under Order 9 Rule 9 of the Code. It is further contended that the 2 medical certificates filed by petitioner were obtained only on the same day, that she is hale and healthy and she is moving from her native place to Rajahmundry frequently. 6. Before the Court below, the petitioner examined P.Ws.1 and 2 and marked Exs.A-1 and A-2. The respondents examined R.Ws.1 to 3. 7. It is further contended that the 2 medical certificates filed by petitioner were obtained only on the same day, that she is hale and healthy and she is moving from her native place to Rajahmundry frequently. 6. Before the Court below, the petitioner examined P.Ws.1 and 2 and marked Exs.A-1 and A-2. The respondents examined R.Ws.1 to 3. 7. By order dt.18-04-2006, the Court below dismissed the said I.A. It held that petitioner failed to produce evidence that she was suffering from severe jaundice and joint pains as she did not file prescriptions for treatment of the same; she also did not obtain any medical certificates from the hospitals and filed them; her evidence that she took treatment for one month on two occasions and recovered fully well shows that her plea with regard to taking bed rest during the periods as claimed by her covered under Exs.A-1 and A-2, is false; although P.W.2, who issued Exs.A-1 and A-2 was examined, his evidence did not inspire confidence as he could not give details of the period for which the petitioner was given treatment and no registers of the hospital run by him were filed. It held that when P.W.1 herself stated that she was treated as inpatient for one month and she had recovered from jaundice and did not go to hospital again, there was no necessity for P.W.2 to issue Ex.A-2 certificate advising her to take bed rest from 01-07-2000 to 13-01-2001. Even otherwise, the Court held that Ex.A-1 did not disclose that petitioner was advised bed rest; that the petitioner in cross-examination stated that she was treated for joint pains for one month, but P.W.2 stated that she was treated for joint pains and blood pressure from 03-02-2001 to 02-06-2003; P.W.2 stated that Exs.A-1 and A-2 were issued on different dates but they appear the same date. It considered evidence of 1st respondent as R.Ws.1 to 3 that petitioner was hale and healthy and used to come to Donthamuru village to the houses of her relatives, and held that 1st respondent rebutted the plea of petitioner that she was unwell. It also held that petitioner failed to prove that she lost her vision and she had no other assistance because the record itself speaks that somebody instructed Sri P.Suryanarayana Murthy, Advocate to represent the matter on her behalf. It therefore dismissed the I.A. 8. It also held that petitioner failed to prove that she lost her vision and she had no other assistance because the record itself speaks that somebody instructed Sri P.Suryanarayana Murthy, Advocate to represent the matter on her behalf. It therefore dismissed the I.A. 8. Aggrieved thereby, this Civil Revision Petition has been filed. 9. The learned counsel for petitioner contended that the order passed by the Court below is contrary to law; the Court below should have liberally exercised its power under Section 5 of the Limitation Act, 1963 and condoned the delay in filing the petition under Order 9 Rule 9 of the Code; that the petitioner had adduced evidence and produced records for not filing the petition within time; as substantial stakes were involved, it is just and proper to condone the delay in filing the application under Order 9 Rule 9 as otherwise the petitioner would suffer grave prejudice. He also relied upon the judgments in State (NCT of Delhi) Vs. Ahmed Jaan (2008) 14 S.C.C. 582 ) and PermonBhagavathy Devaswom, Perinadu village Vs. Bhargavi Amma (Dead) by LRs and others (2008) 8 S.C.C. 321 ). 10. The learned counsel for the respondents, on the other hand, contended that the order passed by the Court below did not suffer from any error of jurisdiction warranting interference by this Court under Article 227 of the Constitution of India; that the petitioner has not acted in a bonafide manner and was not diligent in taking steps to set aside the order dt.17-08-2000 dismissing the suit for non-prosecution; and therefore, the Civil Revision Petition be dismissed. He relied upon the following judgments of Oriental Aroma Chemical Industries Limited Vs. Gujarat Industrial Development Corporation and another (2010) 5 S.C.C. 459 ), BalwantSingh (dead) Vs. Jagdish Singh and others (2010 (5) ALD 97 (SC) and New India Assurance Company Limited, Hyderabad Vs. G.Sarada Prasad and others ( 2001 (2) ALD 161 (DB). 11. I have noted the submissions of both sides. 12. Admittedly, the suit was dismissed for non-prosecution on 18-07-2000 and I.A.No.588 of 2003 was filed on 24-06-2003 to condone the delay of 1039 days in filing petition under Order 9 Rule 9 of the Code. The petitioner pleaded that she was suffering from jaundice from 01-07-2000 to 13-1-2001 and from severe joint pains and blood pressure from 03-02-2001 to 02-06-2003. Admittedly, the suit was dismissed for non-prosecution on 18-07-2000 and I.A.No.588 of 2003 was filed on 24-06-2003 to condone the delay of 1039 days in filing petition under Order 9 Rule 9 of the Code. The petitioner pleaded that she was suffering from jaundice from 01-07-2000 to 13-1-2001 and from severe joint pains and blood pressure from 03-02-2001 to 02-06-2003. In support of this contention, she has filed Exs.A-1 and A-2 and examined P.W.2, who issued them in her favour. The trial Court has considered this evidence and held that the evidence of P.W.2 did not inspire any confidence and that PW1 contradicted the evidence of P.W 2. It also disbelieved the petitioner’s contention that she lost her vision and she had no other assistance as on the request of her relative, one Sri P. Suryanarayana Murthy, Advocate, had represented the matter on 12-07-2000 and got it adjourned to 18-07-2000 on payment of costs of Rs.100/. 13. It is settled law that existence of sufficient cause is a condition precedent for exercise of the power to condone the delay and that what counts is not the length of delay but sufficiency of the cause (See State (NCT of Delhi) (1 supra) and Permon Bhagavathy Devaswom, Perinadu village (2 Supra)). But where the petitioner who seeks condonation of delay does not speak the truth and comes to the Court with unclean hands, such application cannot be entertained (BalwantSingh (dead) (4 supra). In Oriental Aroma Chemical Industries Limited (3 Supra) , the Supreme Court held – “14. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression ‘sufficient cause’ employed in Section 5 of the Limitation act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. Although no hard-and-fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate – Collector (L.A.) V. Katiji (1987) 2 SCC 107 : AIR 1987 SC 1353 ), N. Balakrishnan V. M. Krishnamurthy (1998) 7 SCC 123 : JT (1998) 6 SC 242) and Vedabai V. Shantaram Baburao Patil (2001) 9 SCC 106 ).” 14. In New India Assurance Company Limited, Hyderabad (5 Supra), a Division Bench of this Court quoted and applied the decision of the Supreme Court in P.K. Ramachandran Vs. State of Kerala ( AIR 1998 SC 2276 ), and held: “4. However, the Court added in para 12 that ‘on the facts and circumstances of the case we are of the opinion that it is a fit case for condoning the delay’. The Supreme Court in this judgment however stated, as is quoted above, that the Courts should decide the matters on merits unless the case is hopelessly without merit. This observation of the Supreme Court should be taken to have been made with reference to the case before it. The interpretation sought to be placed on this observation by the learned Counsel for the petitioner if accepted would render law of limitation useless. He wants this Court to understand that the Supreme Court has held that, wherever there is a case on merits the law of limitation shall not apply. This obviously cannot be the intention of the judgment of Supreme Court. He wants this Court to understand that the Supreme Court has held that, wherever there is a case on merits the law of limitation shall not apply. This obviously cannot be the intention of the judgment of Supreme Court. The learned Counsel for the respondents, however, submits that the law of limitation also gives rights to parties and if a person looses a right by not coming to the Court within the prescribed period of time and does not show a sufficient cause for not coming to the Court even if a right is found in his favour, it is defeated. 5. Without going into the plea raised at the Bar, we believe that this Court is bound by the law laid down by the Supreme Court in a later judgment report in P.K.Ramachandran (9 supra), wherein the Supreme Court held: ‘Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds., The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside”. 15. In view of the above decisions of the Supreme Court and in the facts and circumstances of the case, I am satisfied that the petitioner has not proved sufficient cause for condoning the inordinately long delay of 1039 days in filing the petition under Or.9. R.9. CPC. I agree with the reasons given by the Court below and hold that it’s findings do not warrant any interference in exercise of the restrictive jurisdiction of this Court under Section 115 of the Code. 16. Therefore, this Civil Revision Petition is without any merit and the same is accordingly dismissed. No costs. 17. Miscellaneous applications if any, pending in this Civil Revision Petition shall stand closed.