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2020 DIGILAW 624 (TS)

Gudipati Eko Narayana v. Vallapureddy Ravinder Reddy

2020-08-13

SHAMEEM AKTHER

body2020
ORDER : 1. This civil revision petition, under Section 115 of the Code of Civil Procedure, 1908, is filed by the petitioner/defendant No. 1, challenging the order, dated 7.8.2019, passed in IA No. 387 of 2019 in AS (SR) No. 1047 of 2019 by the Principal District Judge, Nalgonda, whereby, the petition filed by the petitioner/defendant No. 1 under Order XLI Rule 3-A(1) of CPC for condonation of delay of 209 days in filing the subject appeal, was dismissed. 2. Heard the learned Counsel for the petitioner/defendant No. 1 and perused the record. The material placed on record reveals that notices on respondent Nos. 2, 4, 6 and 7 were served. Inspite of the same, they did not choose to enter appearance. The notices initially sent to respondent Nos. 1, 3 and 5 to the address mentioned in the original suit returned un-served with postal endorsement “No such addressee.” Thereafter, this Court, vide order, dated 18.5.2020, permitted the petitioner/defendant No. 1 to take out personal notice on the Counsel on record for the said respondents before the Court below. The learned Counsel for the petitioner/defendant No. 1 filed a Memo in USR No. 20248 of 2020 alongwith the postal track record showing that notices sent to the Counsel on record for respondent Nos. 1, 3 and 5 were served. Under these circumstances, the notices on respondent Nos. 1, 3 and 5 are deemed to be served. 3. Initially, the respondent Nos. 2 to 7 herein/plaintiffs filed the subject original suit in OS No. 119 of 2010 before the Trial Court against the petitioner herein/defendant No. 1 and the respondent No. 1 herein/defendant No. 2. The said suit was decreed on merits. Aggrieved by the same, the petitioner herein/defendant No. 1 preferred an appeal alongwith the subject IA No. 387 of 2019 for condonation of delay of 209 days in preferring the appeal. Vide, impugned order, the said application was dismissed by the Court below. Aggrieved by the same, the petitioner/defendant No. 1 preferred this civil revision petition. 4. The learned Counsel for the petitioner/defendant No. 1 would contend that the petitioner/defendant No. 1 and his wife are senior citizens. The wife of the petitioner/defendant No. 1 was ill and the petitioner/defendant No. 1 was made to go around the doctors and hospitals for getting her wife treated. In that connection, the delay of 209 days in filing the appeal occurred. The wife of the petitioner/defendant No. 1 was ill and the petitioner/defendant No. 1 was made to go around the doctors and hospitals for getting her wife treated. In that connection, the delay of 209 days in filing the appeal occurred. In the affidavit filed in support of the subject IA No. 387 of 2019, the petitioner/defendant No. 1 has clearly explained the circumstances under which he could not file the appeal in time, but the Court below erroneously held that except bald statements, the reason for the delay was not properly explained. The respondents herein obtained decree in the subject suit by playing fraud upon the petitioner/defendant No. 1 and as such, the petitioner/defendant No. 1 has got good chances of success in the appeal. No prudent person can afford to allow the limitation for filing the appeal to expire, when he has got a good case in his favour. The delay was neither intentional nor wanton, but for the illness of the wife of petitioner/defendant No. 1. The Court below failed to appreciate that as per the settled legal principles, the Courts have to be liberal in condoning the delay in filing the appeal, more particularly, in first appeal, and ultimately prayed to set aside the impugned order and allow the civil revision petition as prayed for. 5. The law on the aspect of condonation of delay is well settled. This Court and Hon'ble Supreme Court have been repeatedly pointing out that Courts must adopt liberal approach in matters of condonation of delay, where there are justifiable grounds. If the reasons for the delay are bona fide and the applicant does not derive any benefit because of the delay, the Courts must condone the delay by adopting liberal approach. Ordinarily, a litigant does not stand to benefit by lodging an appeal late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred, so that the other side cannot claim to have vested right in injustice being done, because of non-deliberate delay. There is no presumption that delay has occasioned deliberately, or on account of culpable negligence, or on account of mala-fides, unless proven otherwise. There is no presumption that delay has occasioned deliberately, or on account of culpable negligence, or on account of mala-fides, unless proven otherwise. It must be born in mind that judiciary is respected not for its power to legalize injustice on technical grounds, but because it is capable of removing injustice, which it is expected to do so. Hence, the Courts must adopt a justice-oriented approach, when there is sufficient cause for condoning the delay in filing the appeal. 6. In the instant case, the material placed on record reveals that both the petitioner/ defendant No. 1 and his wife are senior citizens. The petitioner/defendant No. 1 had filed the Medical Certificate, dated 28.12.2019, issued by Dr. G. Krishnama Chary, M.S. of G.K. Hospitals, Nalgonda, stating that the wife of the petitioner/defendant No. 1 is suffering from severe Grade-IV Rheumatoid Arthritis, crippling disability and was under his treatment from August, 2018, till date. It was further stated in the said Medical Certificate that she requires home support system, personal attention and physiotherapy. As per the submissions of the learned Counsel for the petitioner/defendant No. 1 and the material on record, the petitioner/defendant No. 1 was made to go around the doctors and hospital for treatment of his wife and in that process, the delay occurred. In view of the said submission coupled with the Medical Certificate, dated 28.12.2019, the petitioner/defendant No. 1 going around the hospitals and doctors for treatment of his wife cannot be ruled out. Moreover, it is fairly conceded by the learned Counsel for the petitioner/defendant No. 1 that he ought to have filed the Medical Certificate, dated 28.12.2019, before the Court below, but he did not do so. Further, the delay is not abnormal and if it is condoned, no prejudice would be caused to the respondents. On the other hand, it would enable both the parties to have then-dispute decided on merits, which course would sub-serve the ends of justice. Under these circumstances, this Court is satisfied that sufficient cause is shown by the petitioner/defendant No. 1 for condoning the delay of 209 days in filing the appeal. The petition merits consideration and is liable to be allowed. 7. Accordingly, the civil revision petition is allowed by setting aside the order, dated 7.8.2019, passed in IA No. 387 of 2019 in AS (SR) No. 1047 of 2019 by the Principal District Judge, Nalgonda. The petition merits consideration and is liable to be allowed. 7. Accordingly, the civil revision petition is allowed by setting aside the order, dated 7.8.2019, passed in IA No. 387 of 2019 in AS (SR) No. 1047 of 2019 by the Principal District Judge, Nalgonda. Consequently, the delay of 209 days in filing the subject AS (SR) No. 1047 of 2019 is condoned. 8. The civil revision petition is, accordingly, allowed. No costs. 9. Miscellaneous Petitions, if any, pending in this civil revision petition, shall stand closed.