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2020 DIGILAW 795 (AP)

Journeygar Z. Adham v. Mudragiri Gurumoorthy

2020-12-11

M.VENKATA RAMANA

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ORDER : M. Venkata Ramana, J. 1. I.A. No. 1 of 2019 is filed to condone the delay of 1200 days in preferring the appeal against the decree and judgment dated 31.03.2016 in O.S. No. 64 of 2012 on the file of the Court of learned V Additional District Judge, Tirupati. 2. The petitioner is the defendant and the respondent is the plaintiff. The respondent laid the suit in O.S. No. 64 of 2012 on the file of the Court of learned V Additional District Judge, Tirupati, for specific performance basing on an agreement for sale dated 21.03.2009. The property in dispute is a house bearing D. No. 1-213 at Chandragiri Grampanchayat. The suit was decreed by the judgment dated 31.03.2016, considering the material on record particularly, the evidence let in on behalf of the respondent. It is, against this decree and judgment, the petitioner in turn presented an appeal. 3. The delay in presenting the appeal as can be perceived, is certainly enormous. It is 1200 days delay. To explain such delay, it is necessary for the petitioner to make out sufficient cause apart from establishing due diligence on her part in prosecuting the matter. A reference is made in this respect as to requirements of law in order to attract application of Section 5 of the Limitation Act, in the counter of the respondent relying on Balwant Singh (dead) by Lrs vs. Jagadish Singh and others (Civil Appeal No. 1166 of 2006) 2010(8) SCC 685 ). Further reference is made to an order of Hon'ble Supreme Court in S.L.P. No. 21011/21014 of 2007 in the same counter on behalf of the respondent. 4. There are certain undisputed facts, which are required to consider in this matter. The petitioner remained ex parte initially in the suit. An ex parte decree was passed therein on 31.03.2016. The petitioner filed I.A. No. 371 of 2016 under Order IX Rule 13 C.P.C. to set aside the above ex parte decree and it was dismissed by the trial Court by an order dated 03.05.2018. The petitioner presented CMA No. 1015 of 2018 on the file of the then High Court of Andhra Pradesh at Hyderabad and it was also dismissed by the order dated 01.11.2018. The petitioner presented CMA No. 1015 of 2018 on the file of the then High Court of Andhra Pradesh at Hyderabad and it was also dismissed by the order dated 01.11.2018. It is pertinent to note that this Court in the above C.M.A. did not accept the reason to make out sufficient cause for the petitioner, while requesting to set aside the ex parte decree passed against her. This finding in C.M.A. has significant bearing in the present matter. 5. After dismissal of CMA on 01.11.2018, it is apparent that the petitioner did not pursue the matter further questioning the same either preferring a S.L.P. to a Hon'ble Supreme Court or otherwise. 6. It is against the very same decree dated 31.03.2016, the petitioner filed an appeal along with the present petition to condone delay mainly contending that she was prevented from filing a regular appeal on account of ill-health and oldage ailments. She further claimed that she could not follow the case contacting her learned counsel in the trial Court, while asserting that she did not have required knowledge to pursue the matter. The petitioner also relied on prosecuting the matter earlier as stated above, as the reason for the delay. She is also contending that the respondent is trying to execute a decree and evict her from the disputed property and that if he succeeds in his attempts, she would suffer irreparable loss and injury. 7. On such premise, the petitioner claimed that the delay occurred in filing the appeal is neither intentional nor wanton, in this petition. 8. On behalf of the respondent, a serious resistance is offered to this petition. It is mainly pointed out by the respondent that the petitioner was aware of the proceedings in the trial Court, which she was diligently following. At the stage of cross-examination of PW. 2, according to the respondent, the petitioner pursued the matter and that the reason of ill-health set out by the petitioner is not at all established. It is also contended for the respondent that sufficient cause in terms of Section 5 of the Limitation Act is not at all made out by the petitioner particularly, to condone such huge delay. 9. It is also contended for the respondent that sufficient cause in terms of Section 5 of the Limitation Act is not at all made out by the petitioner particularly, to condone such huge delay. 9. Now, the point for determination is, ‘whether the petitioner has established sufficient cause and due diligence in prosecuting the matter in order to condone a delay of 1200 days in presenting the appeal?’ 10. Pursuing the matter earlier upto this Court, undisputedly, reflects that the petitioner was aware of the legal remedies open for her to pursue. These circumstances alone are sufficient to hold that the reason assigned by her that she was not aware of the legal proceedings to seek for redressal is false. Next ground urged by the petitioner is her ill-health and oldage ailments. In the affidavit, she described herself being 61 years old. This age of 61 years cannot lead us to infer that the petitioner is old enough not to understand the nature of pending proceedings against her in a Court. As rightly pointed out for the respondent, this ground of ill-health or the ailment associated with her age is not in any manner substantiated by producing a medical certificate to make out the nature of ailment, from which she has been suffering from. Except a bald allegation of ill-health, the petitioner did not set out its nature nor state that it was serious enough that prevented her to follow the case with her advocate in the trial Court. 11. Even otherwise, when ‘sufficient cause’ required to establish in an application under Section 5 of the Limitation Act was considered in CMA No. 1015 of 2018, and which was rejected by this Court, by an order dated 01.11.2018, the petitioner cannot make out the same as a reason in this petition to accept her request. 12. It is quite manifest from the material on record that the petitioner was diligent in pursuing the matter, when it was pending in the trial Court. Even after dismissal of CMA on 01.11.2018, apparently, she took her own time, to present this appeal in this Court (this appeal was filed on 18.10.2019). The reason for such delay in presentation of the appeal remained completely unanswered in the affidavit of the petitioner. This is another factor demonstrative of want of diligence on the part of the petitioner. 13. The reason for such delay in presentation of the appeal remained completely unanswered in the affidavit of the petitioner. This is another factor demonstrative of want of diligence on the part of the petitioner. 13. As rightly contended for the respondent relying on rulings of the Hon'ble Supreme Court referred to above, a delay of this nature cannot be condoned for mere asking or for certain fanciful grounds. Requirement of law when prescribes certain facets to apply, they must be complied with, without any dilution. 14. Thus, from the material on record, it is manifest that the petitioner miserably failed to make out sufficient cause with required diligence of such huge delay of 1200 days in preferring the appeal. Therefore, this petition has to be dismissed. 15. In the result, I.A. No. 1 of 2019 is dismissed. 16. In view of dismissal of I.A. No. 1 of 2019, the Appeal Suit stands rejected. Consequently, I.A. No. 2 of 2019 is closed. No costs. 17. Miscellaneous applications pending if any, shall stand closed.