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2019 DIGILAW 154 (AP)

Panduranga Rao v. Facesal Hosai

2019-07-26

T.RAJANI

body2019
ORDER : 1. This revision is preferred questioning the order, dated 30.11.2018, passed in IA No.1609 of 2018 in Unnumbered Appeal Suit of 2018, by virtue of which the lower court dismissed the petition, which was filed seeking for condonation of delay of nine days in filing the appeal against the decree and judgment, dated 12.04.2018 in O.S.No.347 of 2017. 2. Briefly the facts, as stated in the petition filed by the petitioner, are that the respondent filed the suit O.S.No.347 of 2017 seeking for eviction, which was decreed on 12.06.2018. The counsel for the petitioner noted the judgment date as 21.06.2018, instead of 12.06.2018 and got filed copy application as such. Hence, the delay is neither wilful nor wanton. 3. The lower court dismissed the application by considering that the respondent has vividly explained in the counter the stages at which the petitioner has watched the steps taken by the respondent and has taken follow up action in presenting the appeal and also representing the returned appeal file. It also observed that the narration of incidents in the counter would clearly reveal the lack of bona fides of the petitioner in showing the sufficient cause for the delay. 4. Questioning the said order, this revision is preferred on the grounds that the court below failed to see that the delay is only nine days and that it was purely due to the mistake of the counsel and not the petitioner. The lower court ought to have considered the fact that the petitioner is residing in the premises for the last eight years without any blemish and the children of the petitioner are young and are about to complete their primary education by 2020. It failed to appreciate the law laid down by the Hon’ble Supreme Court in RATAN SINGH V. VIJAY SINGH AND OTHERS, 2001(1) SCC 469 , wherein it was held that there is no justification for placing a rigid construction on the provisions of the Limitation Act and what is needed is liberal and broad based construction and not a ready and narrow interpretation of the provisions of the Act. 5. Heard Sri G.V.S.Kishore Kumar, learned counsel for the petitioner and Sri V.V.Ravi Prasad, learned counsel for the respondent. 6. 5. Heard Sri G.V.S.Kishore Kumar, learned counsel for the petitioner and Sri V.V.Ravi Prasad, learned counsel for the respondent. 6. Going by the guidelines reflected in the judgment of the Supreme Court reported in BALWANT SINGH (DEAD) vs. JAGDISH SINGH AND OTHERS, (2010) 8 SCC 685 , this court would proceed to evaluate the material on record to see whether there was sufficient cause for the delay in filing the appeal by the petitioner. The Supreme Court in the above said judgment held as follows: “Whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly. Furthermore, it is also a well settled canon of interpretative jurisprudence that the Court should not give such an interpretation to provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If we accept the contention of the Learned Counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (Order 22 Rule 9 of the CPC and Section 5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law. Liberal construction of the expression `sufficient cause' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect `sufficient cause' as understood in law. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect `sufficient cause' as understood in law. The expression `sufficient cause' implies the presence of legal and adequate reasons. The word `sufficient' means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated. We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. Even if the term `sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of `reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflect normal behavior of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. Delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications.” 7. The counsel for the respondent contends that the delay in filing the appeal is not nine days, as the petitioner did not comply with the grounds on which the return of the appeal was made. He contends that the appeal was presented on 31.01.2018 with a delay of nine days and the same was returned with one of the endorsements as to how the appeal is in time. The appellant made a resubmission stating that there is nine days delay and Section 5 of the Limitation Act petition was filed. There is again a return, stating that the objections 4 and 5 i.e., the above said objection and another were not complied. Later, another resubmission was made on 01.10.2018 stating that the objections are complied with. 8. Hence, it appears from the docket that the petition for condonation of delay was filed on 01.10.2018 and not on 31.08.2018 i.e., on the date of the appeal itself. The fact remains that the appeal is filed only with a delay of nine days. The application seeking for condonation of delay seems to have been filed only after a month thereafter, when the office took objection. The fact remains that the appeal is filed only with a delay of nine days. The application seeking for condonation of delay seems to have been filed only after a month thereafter, when the office took objection. When once the grounds of return are complied with, the issue that needs to be decided would only be the issue that arises from the petition filed for condonation of delay, which is nine days. The court need not go into the reasons for non-filing of the petition within time but it has to restrict itself only to appreciating the reasons for filing the appeal with delay. 9. The counsel for the respondent vehemently contends that the conditional order passed by the court while granting stay is not complied with and hence, the delay cannot be condoned. 10. This court by virtue of the order, dated 01.03.2019 decided to consider the merits of the order under revision after the tenant pays the arrears of rent as on 28.02.2019. The contention of the respondent’s counsel now is that the said arrears are not paid. But the counsel for the petitioner disputes the said submission and contends that the arrears are paid. It is admitted that some amounts are deposited by the petitioner towards arrears of rent. According to the respondent’s counsel the admitted rent is Rs.14,000/-per month. He takes this court through the contents of the counter to prove the same. 11. But a perusal of the written statement shows that the admitted rent is only Rs.10,300/-and the rent of Rs.14,000/-, in fact, is disputed by the respondent. The counsel for the petitioner, however, admits that there might be some difference in the amount deposited towards arrears of rent and it may fall short of few thousands. The counsel undertakes that his client would vacate the premises by March 31st of 2020, by which date the studies of his son in Tympany school, to which this house is nearer would be completed. Recording the said submission and considering that the reasons stated for not filing the appeal within time is that the counsel for the petitioner has noted down the date of judgment wrongly, this court deems it just to allow the revision. 12. It can also be seen that the lower court under the impugned order, after relying on the judgment in RAJ KUMAR AGARWAL VS. 12. It can also be seen that the lower court under the impugned order, after relying on the judgment in RAJ KUMAR AGARWAL VS. SURESH CHANDRA JAIN dated 10.04.2015 in Writ Appeal No.54978 of 2014 has enumerated the causes that are held to be sufficient for the absence of the defence, one of them being the mistake of the pleader in noting wrong date in diary. 13. In this case, the very ground on which the delay sought to be condoned is that the counsel has noted down wrong date. The fact remains that the counsel, who appeared in the suit, has ceased to be the counsel in the appeal and the present counsel is another counsel. Hence, all these obviously would go to support the contention that the reason for the delay is the wrong noting of the judgment by the counsel for the petitioner. 14. The judgments relied upon by the counsel for the respondent reported in PAYAL VISION LIMITED VS. RADHIKA CHOUDHARY, (2012) 11 SCC 405 and CHITTAJALLU SRINIVASA RAO V. NARMADA JOSHI, 2008(1) ALD 111 do not bear any relevance to the issue involved in this case. 15. In view of the above, this court opines that the impugned order needs to be set aside. With the above observations, the Civil Revision Petition is allowed. As a sequel, the miscellaneous applications, if any pending, shall stand closed.