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2020 DIGILAW 817 (AP)

Paleti Sambasiva Rao v. Chigurupati Anjamma

2020-12-15

M.SATYANARAYANA MURTHY

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ORDER : M. Satyanarayana Murthy, J. 1. The civil revision petition is filed under Article 227 of the Constitution of India, challenging the order dated 13.03.2012 passed in I.A. No. 388 of 2011 in O.S. No. 317 of 2007 by the II Additional Junior Civil Judge, Guntur, whereby the petition filed under Section 5 of Limitation Act to condone delay of 366 days in filing the petition under Order IX Rule 9 of Code of Civil Procedure (for short "C.P.C.") was dismissed. 2. The petitioner is the plaintiff, who filed a suit for specific performance of contract in respect of plaint schedule property on the basis of agreement of sale dated 07.05.1991. As the agreement of sale was executed on Rs. 50/- stamp paper, the petitioner filed a petition to impound the document. Accordingly, the Court was pleased to refer the document to Revenue Divisional Officer, who in turn forwarded the same to the District Registrar. While the matter stood thus, the petitioner filed a memo before the Court contending that he is not required to pay the stamp duty and penalty i.e. impounding fee on the document sued upon. Learned counsel for the petitioner also submitted a decision along with the memo. Accordingly, a letter was addressed by the trial Court to the Registrar, who in turn sent the document back to the Court. The said document was received by the Court from the Registrar and posted the suit to 15.03.2010. On the date of adjournment, the petitioner could not appear before the Court due to fever, which led to jaundice. As there was no representation by the Advocate for the petitioner, the evidence of the petitioner was closed and posted the suit to 22.03.2010, again on 30.03.2010, but none appeared before the Court. Consequently, the suit was dismissed for default on 06.04.2010. On enquiry by the petitioner, learned counsel for the petitioner informed that the suit was dismissed for default due to the absence of the petitioner and non-representation by the counsel. Thus, the petitioner was prevented by sufficient cause from appearing before the Court, requested to condone the delay of 366 days in filing the petition to set aside the dismissal order. 3. The respondents remind ex parte. 4. Thus, the petitioner was prevented by sufficient cause from appearing before the Court, requested to condone the delay of 366 days in filing the petition to set aside the dismissal order. 3. The respondents remind ex parte. 4. Upon hearing argument of learned counsel for the petitioner, the Court below dismissed the petition on the ground that the petitioner was not prevented from sufficient cause and absolutely no reason was shown by the petitioner as to why he could not file application in time to set aside the dismissal order, thus there is sheer negligence and latches on the part of the petitioner in prosecuting the case. 5. Aggrieved by the same, the present revision is filed under Article 227 of the Constitution of India on various grounds mainly contending that the cause shown by the petitioner is sufficient cause, which prevented him from appearing before the Court and the Court cannot adopt pedantic approach and consider the cause shown by the petitioner liberally, but the trial Court failed to exercise discretion conferred on it by Section 5 of Limitation Act, committed an error, prayed to set aside the same. 6. Sri D. Hanumanth Rao, learned counsel for the revision petitioner, reiterated the contentions urged in the revision petition and contended that the Courts must make endeavour to dispose of the suit on merits and not for default, placed reliance the judgment of the Apex Court in "Robin Thapa v. Rohit Dora (2019) 7 Supreme Court Cases 359". It is also further contended that the petitioner pleaded specific cause i.e. sufferance from fever, which lead to Jaundice, but the Court did not consider the same in proper perspective and committed grave error, requested to set aside the impugned order. 7. Learned counsel for the respondents supported the impugned order in all respects while contending that when the petitioner pleaded specific cause, which prevented him from appearing before the Court on a particular date when the suit was posted, it must be substantiated by cogent evidence and as the petitioner failed to produce sufficient proof, the trial Court rejected the contention of the petitioner and rightly dismissed the petition, prayed to dismiss the revision while exercising power under Article 227 of the Constitution of India. 8. Admittedly, the suit was filed for specific performance of agreement of sale. As the agreement of sale was executed on Rs. 8. Admittedly, the suit was filed for specific performance of agreement of sale. As the agreement of sale was executed on Rs. 50/- stamp paper, the petitioner filed a petition to impound the document. Accordingly, the Court was pleased to refer the document to Revenue Divisional Officer, who in turn forwarded the same to the District Registrar. While the matter stood thus, for one reason or the other, the petitioner made a vain attempt to convince the Court that the petitioner is not required to pay the stamp duty and penalty i.e. impounding fee. On the basis of the memo filed by the petitioner, the document was called from the District Registrar and posted the suit for the evidence of the petitioner, but he could not appear before the Court. 9. The only cause, which prevented the petitioner from appearing before the Court is explained in the affidavit filed along with the petition i.e. suffering from fever, which lead to jaundice. The suit was posted to 15.03.2010, later the matter went on three adjournments, as there was no representation on behalf of the petitioner i.e. 22.03.2010, 30.03.2010, finally on 06.04.2010. On 06.04.2010 the suit was dismiss for default. When the petitioner was really suffering from fever, which led to Jaundice, nothing prevented his counsel to represent the suit before the Court, but they conveniently slept over for a period of 366 days and leisurely approached the Court by filing petition under Section 5 of the Limitation Act. 10. When the petitioner pleaded that he was prevented by sufficient cause i.e. sufferance of fever, which led to Jaundice, he might have treated in a hospital, and there must be some medical evidence to substantiate the same. But, for one reason or the other, no documentary proof is filed to substantiate the cause. The word 'sufficient cause' though required to be considered liberally without adopting pedantic approach, still this Court on mere asking cannot allow the petition without sufficient explanation for the delay. 11. No doubt, the Court must adopt liberal approach while considering the cause in delay condonation petition without adopting pedantic approach, but that does not mean whatever the petitioner pleaded is to be accepted. 11. No doubt, the Court must adopt liberal approach while considering the cause in delay condonation petition without adopting pedantic approach, but that does not mean whatever the petitioner pleaded is to be accepted. When the petition is filed under Section 5 of the Limitation Act raising a specific contention that the petitioner was prevented by sufficient cause from appearing before the Court on specific date, it is for the petitioner to substantiate the same by producing some material, more particularly when he pleaded that he suffered from fever, which led to Jaundice. Moreover, it is not his case that he suffered from illness for 366 days and the period of illness was not mentioned in the petition. 12. Learned counsel for the petitioner relied on the judgment of the Apex Court in "Robin Thapa v. Rohit Dora" (referred supra), where the Apex Court held that litigation should not be terminated by default, either of plaintiff or defendant and the adjudication be done on merits. 13. The law declared by the Apex Court in the said judgment is not in quarrel. 14. When sufficient cause is not shown, delay cannot be condoned in view of the law declared by the Supreme Court in "Lanka Venkateswarlu (D) by L.Rs. v. State of A.P. and Others, (2011) 4 SCC 363 " held as follows: "We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", justice oriented approach", "substantial justice" cannot be employed to jettison the substantial law of limitation, especially in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation act, the Courts do not enjoy unlimited and unbridled discretionary powers. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers." 15. In view of the law declared by the Apex Court, the Courts cannot jettison substantive law of limitation on the concept of substantial justice or complete justice and set-aside the order accepting any cause shown by the petitioner as 'sufficient cause'. When the petitioner approached the Court with a specific cause, it is for him to substantiate the same to claim benefit under Section 5 of the Limitation Act as he was prevented by cause, which is beyond his control. In the absence of any material that he was prevented by sufficient cause, the Court cannot allow such petition on mere asking by creating a lame excuse to condone such abnormal delay. Hence, the Trial Court did commit no error in passing the impugned order warranting interference of this Court by exercising power under Article 227 of Constitution of India. The civil revision petition is devoid of merits; consequently, the petition is liable to be dismissed. 16. In the result, the civil revision petition is dismissed. No costs. 17. The miscellaneous petitions pending in all the three revisions, if any, shall also stand closed.