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2014 DIGILAW 878 (AP)

M. Rajamannar v. B. Fakruddin

2014-07-15

M.S.RAMACHANDRA RAO

body2014
Judgment 1. This Revision Petition is filed challenging the order dt.17-02-2010 in I.A.No.362 of 2007 in I.A.No.363 of 2005 in O.S.No.102 of 2003 on the file of the Junior Civil Judge, Uravakonda. 2. The petitioner in the Revision Petition is the plaintiff in the above suit. He filed the suit for recovery of a sum of Rs.51,100/- with future interest and costs against the respondent. 3. Written statement was filed by the respondent, issues were framed and trial commenced. 4. The petitioner filed his affidavit in lieu of chief examination. The matter was posted to 17-11-2005 for cross examination. On that day, the learned counsel for the respondent filed a petition to receive certain documents and the matter was adjourned to 23-11-2005. On 23-11-2005 Sri A.Raghavendra, learned counsel for the petitioner had gone to Tirupati and had instructed Sri Ramamohan, advocate, Uravakonda to represent on his behalf in the suit. The case was called for cross examination of P.W.1. But P.W.1 i.e. the petitioner was not present and the advocate Sri Ramamohan reported no instructions for the plaintiff. So P.W.1 was called absent and the suit was dismissed for default on 23-11-2005. 5. On 02-12-2005 I.A.No.363 of 2005 was filed under Order IX Rule 9 CPC to restore the suit which has been dismissed for default on 23-11-2005. Affidavit of the counsel Sri A.Raghavendra was filed in support thereof wherein he narrated the circumstances in which the suit came to be dismissed. The said application I.A.No.363 of 2005 was posted from time to time and ultimately it was dismissed on 27-03-2006 on the ground that there is no representation on behalf of the petitioner. 6. On 05-07-2007, the petitioner filed IA.No.362 of 2007 to condone the delay of 465 days in filing the petition to restore I.A.No.363 of 2005 and also another I.A. to restore it. In the affidavit filed in support of I.A.362 of 2007, he contended that he was suffering from severe ill-health and was unable to move; that he had engaged Sri A.Raghavendra as his counsel and the said counsel has advised him that he would look after the case, there was no willful default or intention on his part in not apearing before the Court. 7. Counter was filed by the respondent to the said application. In the counter affidavit, the respondent denied that the petitioner was suffering from severe ill-health or was unable to move. 7. Counter was filed by the respondent to the said application. In the counter affidavit, the respondent denied that the petitioner was suffering from severe ill-health or was unable to move. It was also pointed out that the petitioner had not filed any Doctor Certificate in support of the said plea; that the petitioner was running a Finance Corporation and had filed a number cases before the Junior Civil Judge, Uravakonda and every week he was attending at least two or three times before the Court and was also giving evidence in other cases; that he was making false allegation that his advocate Sri A.Raghavendra promised to look after the case; and therefore the I.A be dismissed. 8. By order dt.17-02-2010, the Court below dismissed I.A.No.362 of 2007. It held that on 23-11-2005, the suit was dismissed as P.W.1 was not present for cross examination and the Court waited till 5 p.m. and when his counsel reported no instructions, it was dismissed for default. It held that the petitioner had attended before the Court in some other cases filed by him against some other parties and he had not filed any medical evidence to show that he suffered from ill-health preventing him from filing the application for duration of course 465 days. It also found that the petitioner was hale and healthy when he appeared before the Court at the time of arguments by his counsel and that he did not explain day to day delay and therefore, it was not inclined to grant any relief to the petitioner. 9. Challenging the same, this Revision Petition is filed with a delay of 792 days. 10. The petitioner had filed C.R.P.M.P.No.1845 of 2013 for condonation of the said period of delay and the said period of delay was condoned vide order dt.13-06-2013 on payment of a sum of Rs.1,000/- to the AP State Legal Services Authority within four weeks from that day. The said costs were paid. It was mentioned in the said order that notice was served on the respondent but the respondent did not put in appearance. 11. Heard Sri B.Anjaneyulu, learned counsel for the petitioner and Smt.Hamsa Devineni, learned counsel for the respondent. 12. The said costs were paid. It was mentioned in the said order that notice was served on the respondent but the respondent did not put in appearance. 11. Heard Sri B.Anjaneyulu, learned counsel for the petitioner and Smt.Hamsa Devineni, learned counsel for the respondent. 12. The learned counsel for the petitioner contended that the trial Court had erred in refusing to condone the delay of 465 days in filing the petition to restore I.A.No.363 of 2005; that the petitioner had not been able to file application for restoration of I.A.No.363 of 2005 within time on account of severe ill-health; that his counsel had promised to take care of the matter but did not do so and the petitioner cannot be blamed for his non-appearance on 27-03-2006. He contended that the petitioner had a good case in the suit and if I.A.No.363 of 2005 is not restored, an irreparable loss will be caused to the petitioner. He also cited N.Balakrishnan Vs. M.Krishnamurthy ( AIR 1998 S.C. 3222 ), M.Yerrappa (died) by L.Rs. and others Vs. Authorized Officer, Land Reforms Appellate Tribunal, Anantapur, Anantapur District ( 2011 (1) ALD 383 ) and S.Ganesharaju (Dead) through L.Rs and another v. Narsamma (Dead) through L.Rs and others (2013) 11 SCC 341 ).He contended that day to day delay need not be explained and respondent could be compensated by imposition of heavy costs. 13. The learned counsel for the respondent, on the other hand, strongly refuted contentions of the learned counsel for the petitioner. She contended that the conduct of the petitioner through out has been negligent at every stage; that even though the petitioner had alleged that he was suffering from severe ill-health, he did not file any material before the Court to establish the said fact; and therefore the Court below had rightly dismissed I.A.No.362 of 2007. 14. I have noted the submissions of both sides. 15. Admittedly the suit was filed in the year 2003 for recovery of a sum of Rs.51,100/- against the respondent. Having filed his affidavit in lieu of chief examination, the petitioner did not appear before the Court for cross examination on 23-11-2005. According to petitioner his counsel Sri A.Raghavendra had instructed Sri Ramamohan, advocate, Uravakonda to represent the case on 23-11-2005. Admittedly the suit was filed in the year 2003 for recovery of a sum of Rs.51,100/- against the respondent. Having filed his affidavit in lieu of chief examination, the petitioner did not appear before the Court for cross examination on 23-11-2005. According to petitioner his counsel Sri A.Raghavendra had instructed Sri Ramamohan, advocate, Uravakonda to represent the case on 23-11-2005. The trial court noted in it’s order that the said counsel waited in the Court for the petitioner to make himself available for his cross examination till 5 p.m. and since the petitioner did not appear till that time, he reported “no instructions”. Therefore, the suit had been dismissed for non-prosecution on 23-11-2005. No doubt I.A.No.363 of 2005 was filed to restore it on 02-12-2005 accompanied by an affidavit of the petitioner’s counsel Sri A.Raghavendra. Even thereafter when this I.A.No.363 of 2005 was listed on 27-03-2006, the petitioner did not appear again. Therefore, I.A.No.363 of 2005 was dismissed on 27-03-2006. 16. The petitioner contends that he was suffering from severe ill-health on that day and had engaged Sri A.Raghavendra as his counsel who advised him that his case would be taken care of and therefore the Court may restore I.A.No.363 of 2005 by condoning the delay of 465 days in filing petition to restore the said I.A. 17. The petitioner has not chosen to file any medical Certificate in support of his alleged ill-health nor did he examine himself or any doctor to prove it. Even the nature of illness is not mentioned. 18. It is pertinent to note that the petitioner had filed a Consumer Case against his counsel A.Raghavendra in C.C.No.78 of 2011 before the District Consumer Disputes Redressal Forum, Anantapur. In that case, he had alleged negligence on his counsel Sri A.Raghavendra. He had produced Ex.A-3 document showing that he had underwent a surgery. The District Consumer Forum did not consider the said document on the ground that the age of the patient was shown to be 46 therein while the petitioner’s age was 60 years; the patient had been admitted in the hospital on 13-09-2007 long after the suit was dismissed on 23-11-2005 and I.A.No.363 of 2005 was dismissed on 27-03-2006. The said order was also confirmed by the AP State Consumer Disputes’ Redressal Commission, Hyderabad in F.A.No.643 of 2012 by judgment dt.14-12-2012. The said order was also confirmed by the AP State Consumer Disputes’ Redressal Commission, Hyderabad in F.A.No.643 of 2012 by judgment dt.14-12-2012. It is no doubt true that there is a further appeal preferred before the National Consumers’ Redressal Commission, New Delhi, and that the said appeal is pending. 19. The primary reason given by the petitioner for his non-appearance on 27-03-2006 is that he was suffering from severe ill-health. The said allegation was not proved because no evidence of the alleged ill-health was produced before the Court below. The order dt.18-07-2012 of the District Consumers Disputes’ Redressal Forum, Anantapur indicates that the petitioner had got himself admitted in the hospital on 13-09-2007 long after 23-03-2006 when I.A.No.363 of 2005 was dismissed. It is not the case of the petitioner that there is some other evidence available (other than what was filed before the Consumer forum) in proof of his alleged ill-health. Admittedly I.A.No.362 of 2007 has been filed with a delay of 465 days. In my opinion, the said delay is inordinate and has not been satisfactorily explained. 20. The facts narrated above indicate that the petitioner has been negligent in prosecuting O.S.No.102 of 2003 by not appearing when the matter was posted for his cross examination, not being present when I.A.No.363 of 2005 was taken up by the trial Court and also by filing this revision with delay of 792 days. 21. No doubt as held by this Court in M.Yerrappa (2 supra), day to day delay need not be explained. In N.Balakrishnan (1 supra), the Supreme Court has held that applications for condonation of delay should be liberally considered to advance substantial justice and merely because there is some lapse on the part of the litigant concerned, the Court should not turn down his plea and to shut the door against him. It had also held that if the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor by compensating other party with costs. In S.Ganesharaju (3 supra), a review petition was filed seeking review of a judgment in an appeal which had been disposed of by the High Court of Karnataka with a delay of 53 days along with an application to condone the said delay. This was dismissed by the said Court. In S.Ganesharaju (3 supra), a review petition was filed seeking review of a judgment in an appeal which had been disposed of by the High Court of Karnataka with a delay of 53 days along with an application to condone the said delay. This was dismissed by the said Court. Challenging the same the appeal was filed in Supreme Court. The Court held that the delay of 53 days was not inordinate or exorbitant and ought to have been condoned by the High Court. It reiterated the principle laid down in N.Balakrishnan (1 supra) and held that while considering whether or not to condone the delay the guiding principle is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter. 22. In my opinion the petitioner has evinced a very casual approach to the conduct of his suit and has been extremely negligent in prosecuting it. His explanation for the condonation of delay that he was suffering from severe ill-health has not been substantiated. 23. In this view of the matter, I hold that the trial Court did not commit any error in refusing to condone the inordinately long delay of 465 days in filing the application to restore I.A.No.362 of 2007. The trial Court had also observed that the petitioner had attended the Court in other cases filed by him against some other parties. It has rightly held that ill-health with which the petitioner has suffered was not shown to be of such a nature that he had suffered for the period of 465 days. It had also noted that he did not appear like suffering from any chronic disease when he has previously appeared before the Court and had looked hale and healthy. Thus, the trial Court did not accept that his plea is bona fide. I see no error in the said view. 24. Therefore, the Revision Petition fails and it is dismissed. No costs. 25. As a sequel, the miscellaneous petitions, pending if any, shall stand closed.