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2014 DIGILAW 884 (AP)

Mohd. Shakeel Ahmed v. Pioneer Overseas Corporation of India rep. , by its authorised signatory Mr. Ramesh Kailasam, Somajiguda, Hyderabad

2014-07-16

M.SEETHARAMA MURTI

body2014
ORDER: This is a civil revision petition by the unsuccessful petitioners/plaintiffs under Section 115 of the Code of Civil Procedure assailing the orders dated 29.11.2013 of the learned Senior Civil Judge, Medak made in IA.No.443 of 2013 in OS.No.22 of 2010 filed under Section 5 of the Limitation Act for condonation of the delay of 384 days in filing the application seeking restoration of the suit which was dismissed for default on 03.07.2012. 2. The introductory facts, in brief, are as follows: - The petitioners/plaintiffs brought a suit against the defendant for perpetual injunction in respect of various items of dry lands more fully described in the items 1 to 6 of the schedule annexed to the plaint. The defendant had filed written statement resisting the suit. After the issues were framed, the suit was adjourned for trial from time to time. Finally, the suit was dismissed for default on 03.07.2012. Along with the petition filed seeking restoration of the suit, the petitioners/plaintiffs had filed the application for condonation of the delay of 384 days in seeking restoration of the suit, which was dismissed for default. At the time of enquiry before the trial court, no oral evidence was adduced. Exhibits P1 to P5 and R1 were exhibited. On merits, the trial Court had dismissed the application and had refused to condone the delay. As a sequel to the said orders, the application seeking restoration of the suit stood rejected. Therefore, the aggrieved petitioners/plaintiffs filed this revision petition. 3. The case of the plaintiffs as stated in the affidavit of the 1st plaintiff filed in support of the petition for condonation of delay, in brief, is as follows: The suit was brought against the sole defendant for perpetual injunction. The suit was coming for trial from 06.03.2012 onwards. The then counsel on record did not inform the 1st plaintiff about the posting of the case and as such the 1st plaintiff, who was not aware of the conditional order dated 21.06.2012, could not attend the Court on 03.07.2012. The suit was dismissed for default on that day as there was no representation on behalf of the plaintiffs and as the 1st plaintiff did not attend the Court being unaware of the conditional orders passed by the Court. From 15.06.2012 to 30.04.2013 the 1st plaintiff was laid up with chicken guinea with viral. The suit was dismissed for default on that day as there was no representation on behalf of the plaintiffs and as the 1st plaintiff did not attend the Court being unaware of the conditional orders passed by the Court. From 15.06.2012 to 30.04.2013 the 1st plaintiff was laid up with chicken guinea with viral. The former counsel also did not contact the 1st plaintiff though he was having the telephone number and the house address of the 1st plaintiff with him. The 1st plaintiff had recovered from his illness and started moving out of the house in the month of May 2013. After recovery from illness, and on enquiries made with the then counsel, the 1st plaintiff came to know that the suit was dismissed for default on 03.07.2012. The former counsel gave no objection vakalat with great difficulty and, for the reasons best known to him, did not return the entire record in spite of repeated demands. Therefore, the 1st plaintiff was constrained to apply for certified copies from the Court; and the same were received on 14.06.2013. Subsequently, the case was entrusted to the present counsel in the Court below. Thus the delay of 384 days that had occasioned in filing the petition seeking restoration of the suit was only due to the various reasons and circumstances stated and not due to wilful and wanton reasons. If the delay is not condoned, the plaintiffs suffer serious loss. 4. On the other hand, the case of the respondent/defendant in brief is as follows: - The material allegations in the affidavit filed in support of the petition are all false. The explanation offered is not bona fide. If really the 1st plaintiff was unwell, the 2nd plaintiff ought to have pursued the matter and no reasons are assigned and no explanation is offered for the 2nd plaintiff not being diligent. The plaintiffs are not entitled to shift the blame on to their then counsel on record. The negligence sought to be attributed to the counsel is no ground for condonation of the delay as it is the responsibility of the plaintiffs to follow up the matter. The plaintiffs are not entitled to shift the blame on to their then counsel on record. The negligence sought to be attributed to the counsel is no ground for condonation of the delay as it is the responsibility of the plaintiffs to follow up the matter. On 22.02.2012, the former counsel of the plaintiffs had reported before the Court that the plaintiffs are neither responding to his telephone calls nor showing any interest to proceed with the matter and that he had addressed a letter and is awaiting instructions from the plaintiffs. Later, the matter underwent several adjournments from time to time. On 21.06.2012, the counsel had orally reported that he had no instructions and that he is not in a position to proceed with the matter. After giving ample opportunities to the plaintiffs, the trial Court had dismissed the suit on 03.07.2012. From these circumstances, it is clear that the plaintiffs are not diligent. The medical certificate purportedly issued on 30.04.2012 shows that the plaintiff was advised to take rest up to 30.04.2013. If that is so, he should have approached the Court on 03.06.2013 which is re-opening day of Courts after summer vacation. But the petition for the condonation of delay was filed on 21.08.2013 and the reasons for such delay are not forthcoming. The reasons stated by the 1st plaintiff are invented to suit his convenience. The plaintiffs have not stated the correct facts and had stated lies before the Court and had approached the Court with unclean hands. On that ground alone, the petition is liable to be dismissed. The rights that had accrued to the respondent cannot be taken away on the mere asking of the applicants more particularly when the delay is a direct result of their negligence, default and deliberate inaction. The delay was sought to be explained in a glaringly casual manner. Hence the petition may be dismissed. 5. I have heard the learned counsel for both the sides. I have perused the material record. 6. Now the point for determination is: Whether the plaintiffs had made out valid and sufficient grounds and had shown sufficient cause for condonation of the delay in filing the petition seeking restoration of the suit, which was dismissed for default? And if so whether the impugned order is liable to be set aside? 7. POINT: 7. 6. Now the point for determination is: Whether the plaintiffs had made out valid and sufficient grounds and had shown sufficient cause for condonation of the delay in filing the petition seeking restoration of the suit, which was dismissed for default? And if so whether the impugned order is liable to be set aside? 7. POINT: 7. (a) The facts necessary and the pleadings of the parties are stated supra. The learned counsel for the revision petitioners/plaintiffs had reiterated the averments in the affidavit filed in support of the petition and had further contended as follows: The former counsel of the plaintiffs had not informed about the stage of the proceedings of the suit. Due to non intimation by the counsel on record, the plaintiffs could not either know about the conditional orders of the Court below or attend before the Court on 03.07.2012. The trial Court had failed to take note of the said fact and also the fact that the 1st plaintiff was inflicted with jaundice, chicken guinea with viral etcetera with effect from 15.06.2012 and that he was under treatment. The trial Court had erred in not considering the medical certificates filed by the plaintiffs and also the death certificate relating to the death of the father of the plaintiffs. The trial Court had not considered in the right perspective not only the facts but also the ratios in the decisions relied upon in support of the request for condonation of delay. The trial Court had unnecessarily taken into consideration the aspects of non appearance of the plaintiffs on previous dates of adjournments and had stretched the matter to cover circumstances which had occurred prior to the date of dismissal of the suit on 03.07.2012 and had penalised the plaintiffs for previous negligence also which had already been over looked and condoned earlier. The trial Court had not appreciated the sufficient cause that was shown by the 1st plaintiff for his absence on 03.07.2012 on which date the suit was dismissed for default. The trial court had also not considered that the refusal to condone the delay and the consequential rejection of the petition for restoration of the suit would result in foreclosing a suit and, therefore the order impugned is unsustainable both under facts and in law. 7. The trial court had also not considered that the refusal to condone the delay and the consequential rejection of the petition for restoration of the suit would result in foreclosing a suit and, therefore the order impugned is unsustainable both under facts and in law. 7. (b) On the other hand, the learned counsel for the defendant had contended that the delay is a long delay of more than an year and that no explanation much less truthful and valid explanation was offered for the condonation of such a long delay and that the delay is directly a result of negligence and deliberate inaction and that the plaintiffs are negligent and that, therefore, it is unfair to deprive the defendant of a valuable right that had accrued to him in law and that there is material on record to show that the 1st plaintiff was hale and healthy and is moving about and is attending to his other works while deliberately neglecting to attend to the suit proceedings and that the 1st plaintiff has resorted to false pleas that he was unwell and had filed into court concocted medical certificates and that in any view of the matter, even if the alleged contention that the 1st plaintiff is unwell is true, the entire delay that had occasioned is not explained and no explanation is forthcoming for the 2nd plaintiff not attending before the Court and not prosecuting the matter and not taking steps in time for seeking restoration of the suit which was dismissed for default. 7. (c) A plain reading of the provision of law would show that the plaintiffs who are seeking condonation of a long delay of 384 days are obliged under law to show sufficient cause which implies satisfactory or reasonable explanation which is legal and adequate to answer the purpose intended. 7. (c) A plain reading of the provision of law would show that the plaintiffs who are seeking condonation of a long delay of 384 days are obliged under law to show sufficient cause which implies satisfactory or reasonable explanation which is legal and adequate to answer the purpose intended. On a careful consideration of the case pleaded by the plaintiffs, it is manifest that the plaintiffs, to explain the long delay, rely upon the following causes namely (1) the former counsel in the trial court not informing the 1st plaintiff about the conditional order passed by the Court below despite the said counsel having 1st plaintiffs phone number and address with him and the non attendance of the 1st plaintiff before the Court on 03.07.2012 for the above reason; (2) the 1st plaintiffs illness from 15.06.2012 to 30.04.2013 on account of jaundice, chicken guinea with viral and his inability to contact the counsel and to move out of the house till the month of May 2013 due to the said illness; and (3) the then counsels reluctance to give no objection vakalat and also failure to return the entire bundle, which necessitated the plaintiffs to obtain certified copies of the record before seeking restoration and the time consumed till the obtaining of the certified copies on 14.06.2013. 7. (d) At the out set, it is to be noted that the learned counsel would first contend that the trial Court had unnecessarily taken into consideration the aspects of non appearance of the plaintiffs on the previous dates of adjournments and had stretched the matter to cover circumstances which had occurred prior to the date of dismissal of the suit on 03.07.2012 and that the Court below had penalised the plaintiffs for previous negligence also which had already been over looked and condoned earlier. No doubt while considering the merits of the application filed for the restoration of the suit that was dismissed for default the Court has to only consider the valid reason, if any, for non appearance of the plaintiffs on the day the suit was dismissed for default, but the Court cannot take into consideration the aspects of non appearance of the plaintiffs on previous dates of adjournments and cannot stretch the matter to cover circumstances which had occurred prior to the date of dismissal of the suit on 03.07.2012 as the said conduct prior to the said date stands over looked and condoned. But this argument deserves consideration if only the application for condonation of delay stands allowed and the application filed for restoration of the suit comes up for hearing and disposal on merits. But the said contention cannot be countenanced at this stage when this Court is considering the merits of the application filed for the condonation of the delay that had occasioned in seeking restoration of the suit that was dismissed for default. Therefore, the first contention raised is not germane for consideration at this stage of the matter. 7. (e) Before proceeding further in the matter it is necessary to refer to the precedents relied upon by the learned counsel for both the sides. Learned counsel for the petitioners had relied on the following decisions. 1. Movva Anjamma v. Abhineni Anasuya and another 2. N. Balakrishnan v. M. Krishnamurthy 3. Hiren Singha Roy v. Howrah Improvement Trust 4. G.P. Srivastava v. R.K. Raizada Learned counsel for the respondent had relied on the following decisions. 1. Balwant Singh v. Jagdish Singh 2. Lanka Venkateswarlu v. State of Andhra Pradesh 3. Pundlik Jalam Patil v. Exe.Eng. Jalgaon Medium Project 4. K. Madhavan v. K.N. Sekar I have carefully gone through the ratios in the precedents. On an overall consideration of the legal position settled in the precedents, other principles apart, the following principles emerge. The statutory provision mandates that while considering the applications for condonation of delay, the applicants are required to show sufficient cause for condonation of such delay. Sufficient cause implies satisfactory or reasonable explanation, which is legal and adequate to answer the purpose intended. Condonation of delay is a matter of discretion of the Court. The statutory provision mandates that while considering the applications for condonation of delay, the applicants are required to show sufficient cause for condonation of such delay. Sufficient cause implies satisfactory or reasonable explanation, which is legal and adequate to answer the purpose intended. Condonation of delay is a matter of discretion of the Court. The words sufficient cause under Section 5 of the Limitation Act should receive liberal construction so as to achieve substantial justice. However while condoning the delay; the Court should not forget the opposite party altogether. A liberal approach is to be adopted in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the limitation Act. The concept of such a liberal approach cannot be equated with doing injustice to the other party. The court cannot condone the delay in a case where the Court concludes that there is no justification for the delay. The discretion has to be exercised within the reasonable bounds known to the law. Whims or fancies, prejudice or predilections could not form the basis for exercising the discretionary power. When the delay is directly a result of negligence, default or inaction of a party, such delay cannot be condoned on mere asking of that party. When an applicant makes an incorrect statement in an application seeking condonation of delay, the Court ought to refuse to condone such delay or inordinate delay. When the explanation offered is found to be a sufficient cause for condonation of the delay, but the delay that deserves to be condoned is a long delay, such delay is generally condoned by imposition of adequate terms/costs to compensate the loss and hardship that may be caused to the opposite party on account of the consequential delay in hearing and disposal of the case. Length of delay is no matter and the acceptability of the explanation is the only criterion. If there is no acceptable explanation, sometimes a delay of shorter length may also be uncondonable whereas in certain other times, the delay of a very long range can be condoned provided sufficient cause is shown. 7. Length of delay is no matter and the acceptability of the explanation is the only criterion. If there is no acceptable explanation, sometimes a delay of shorter length may also be uncondonable whereas in certain other times, the delay of a very long range can be condoned provided sufficient cause is shown. 7. (f) Therefore, as rightly and fairly conceded by the learned counsel for both the sides, whether the explanation offered and the cause shown for condonation of the delay is sufficient and whether the delay deserves to be condoned in a case depends upon the facts and the circumstances of that case. Reverting back to the facts of the case, now the plaintiffs inter alia would submit that the counsel did not inform them about the conditional order made in the suit on 21.06.2012 by the Court below directing them to appear before the Court on 03.07.2012 and that due to non intimation by the counsel they could not attend before the Court. Nevertheless, the following facts as borne out by the record are evident from the order of the Court below: That on 21.06.2012, one Sri V. Raghavulu, a Junior counsel in the office of the then counsel for the plaintiffs had appeared before the trial court and had reported to the Court that his senior counsel is going to report no instructions on the next date of hearing and that on that day the counsel for the respondent/defendant was also present before the trial court and had reported ready to proceed with the matter and that on that the trial Court had passed a conditional order directing the plaintiffs to appear on the next date of hearing and adjourned the matter to 03.07.2012. However as there was no representation for the plaintiffs on 03.07.2012 till 05:00 PM, despite the trial Court passing a conditional order, the trial court had dismissed the suit for default having no other option. In the normal course of events, no counsel would make a representation against the interests of his own clients before a Court. However as there was no representation for the plaintiffs on 03.07.2012 till 05:00 PM, despite the trial Court passing a conditional order, the trial court had dismissed the suit for default having no other option. In the normal course of events, no counsel would make a representation against the interests of his own clients before a Court. Coming next to the relevancy of exhibit P3, which is said to be the death certificate of the father of the plaintiffs, the same is not helpful to the plaintiffs to advance their case for condonation of delay for the reasons going to be assigned infra and also as the date of the death as mentioned in the said certificate is 28.11.2012 and where as the suit was dismissed for default on 03.07.2012 and the present application for condonation of delay was filed in August 2013. The next contention of the plaintiffs is that the 1st plaintiff was unwell from 15.06.2012 to 30.04.2013 and was confined to house due to his illness. However, as rightly contended by the defendant, no explanation was offered as to what prevented the 2nd plaintiff in pursuing the matter before the trial court. Coming to the cause viz., the 1st plaintiffs illness during the above said period and his inability to contact the counsel and move out of the house, it is the case of the plaintiffs that the 1st plaintiff was advised rest during the above said period and that he had recovered from the illness and had started moving out in the month of May 2013 and that after his recovery from illness he had come to know that the suit was dismissed for default on 03.07.2012. However, the affidavit is silent as to when and on what dates such enquiries were made and on which date the plaintiffs came to know about the dismissal of the suit for default on 03.07.2012. In support of the contention that the 1st plaintiff was unwell and was advised rest, two medical certificates were filed. Exhibit P1, the medical certificate dated 10.12.2012 issued by a registered medical practitioner, on a perusal would show that the 1st plaintiff received treatment for liver disease/jaundice from 15.06.2012 to 10.12.2012 and that he was advised rest during that period as it was necessary for restoration of his health. Exhibit P1, the medical certificate dated 10.12.2012 issued by a registered medical practitioner, on a perusal would show that the 1st plaintiff received treatment for liver disease/jaundice from 15.06.2012 to 10.12.2012 and that he was advised rest during that period as it was necessary for restoration of his health. Exhibit P2, the medical certificate dated 30.04.2013 issued by the same Doctor, would show that the 1st plaintiff had suffered joint pains with chicken guinea from 19.12.2012 to 30.04.2013 and that he was incapacitated with joint pains and that rest was necessary during the period for restoration of his health. The defendant had filed exhibit R1, which is a certified copy of the registered sale deed bearing document no.1587 of 2013 dated 30.04.2013, which was registered in the office of the Sub Registrar, Ramayampet. The said document was executed by the 1st plaintiff by attending the office of the Sub Registrar, Ramayampet on 30.04.2013 is undisputed. The said document, therefore, would show that the 1st plaintiff who is a resident of Humayun Nagar of Hyderabad had undertaken travel to a place, which is beyond 50 KMs from Hyderabad, to register a sale deed at the office of Sub Registrar, Ramayampet. If really the 1st plaintiff required bed rest till 30.04.2013 as certified in exhibit P2, one would not expect him to undertake travel on the very same day to register a document at a distant place. Therefore, it is clear that the contention that he was unwell and not moving out of the house is not correct. Thus there is material on record to show that the 1st plaintiff was moving out of house from 30.04.2013 onwards. The suit was admittedly dismissed for default on 03.07.2012. However, for seeking restoration of the suit, no steps were taken immediately i.e., from the reopening of the Courts on 3rd June, 2013 till August, 2013. No explanation is forthcoming for the delay till the date the application is filed in the month of August 2013 before the trial Court. Thus, there is no explanation much less valid explanation and no sufficient cause was shown for the long delay. No explanation is forthcoming for the delay till the date the application is filed in the month of August 2013 before the trial Court. Thus, there is no explanation much less valid explanation and no sufficient cause was shown for the long delay. Coming to the reason that the counsel did not return the entire record and that therefore, the certified copies of the record were obtained and the same were granted on 14.06.2013 and that in the process the delay had occasioned, what is to be noted is that the certified copies of the records allegedly obtained from the Court are not produced to show when the application for copies of the record was made and when the same were granted. Even going by this version, the copies of the record were received on 14.06.2013 according to the pleaded case of the plaintiffs and the matter was entrusted to the present counsel thereafter. The application was not filed even within a reasonable time from 14.06.2013. Thus, on a careful consideration of the facts, pleadings and the material on record it is clear that the delay is a direct result of the negligence and deliberate inaction on the part of the plaintiffs and that there is not only no valid explanation but the explanation sought to be offered is also not true. Further, on consideration of all the facts and the circumstances it is clear that there is no justification for the delay. Applying the settled legal principles to the facts of the case, particularly the principle that when a party makes a false statement before the Court while seeking condonation of delay, the delay shall not be condoned exercising discretion in his favour, this Court finds that sufficient cause was not shown for condonation of the long delay and that the plaintiffs are not entitled to the discretionary relief. Having given earnest consideration to the facts and circumstances of the case, this Court is of the well-considered view that the order of the court below brooks no interference. Viewed thus, this Court finds that there is no merit in the revision and the same is liable to be dismissed. 8. In the result, the Civil Revision Petition is dismissed. There shall be no order as to costs. Miscellaneous petitions pending, if any, in this CRP shall also stand dismissed.