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2020 DIGILAW 876 (TS)

P. v. Swathi VS G. Kamala

2020-12-22

A.RAJASEKHAR REDDY

body2020
ORDER : A. Rajasekhar Reddy, J. 1. Respondents 1 to 9 herein filed the suit in O.S. No. 76 of 2003 on the file of Senior Civil Judge, at Vikarabad, Rangareddy District, for perpetual injunction against respondents 12 to 18 herein. 2. The trial court vide judgment and decree dated 20.04.2006, decreed the suit with costs. The first appeal filed by the judgments debtors in A.S. No. 120 of 2006 on the file of IV Additional District and Sessions Judge, FTC, Rangareddy District, ended in dismissal vide judgment and decree dated 31.12.2007. 3. The case of respondents 10 and 11 herein, who are decree holders 10 and 11, is that decree holders 1 to 9 i.e., respondents 1 to 9 herein, sold away the suit schedule property to them, and thus they are the representatives in interest of decree holders 1 to 9 under Section 146 of the C.P.C. It is further stated that judgments 1 to 6 sold away their property in favour of judgment debtor No. 7 and he is the representative in interest of judgments 1 to 6, and the said judgment-debtor No. 7, in turn, sold away the property to judgments debtor 8 and 9, during the pendency of proceedings, and thus, they have became the representatives of interest of judgment debtors 1 to 7. 4. Asserting that the decree holders 10 and 11 are in possession of suit A and B Schedule properties, in respect of which, the trial court granted perpetual injunction in O.S. No. 76 of 2003, and alleging that the judgment debtors 8 and 9 are interfering with their peaceful possession and enjoyment, E.P. No. 31 of 2019 was filed on 11.09.2019, under Order 21, Rule 32 read with Section 151 of CPC., seeking execution of the decree, and for attachment of their properties i.e., schedule C and D properties. 5. The trial court passed the following order dated 13.11.2019: "Issue notices to JDRs 8 and 9, and also issue attachment warrant in respect of E.P. Schedule property on process. Call on 16.12.2019." 6. Aggrieved by the attachment warrant, petitioners herein, who are judgment debtors 8 and 9, filed the present revision. 7. In the cause title, respondents 1 to 9 and 12 to 18 are stated as not necessary parties to the revision. 8. Call on 16.12.2019." 6. Aggrieved by the attachment warrant, petitioners herein, who are judgment debtors 8 and 9, filed the present revision. 7. In the cause title, respondents 1 to 9 and 12 to 18 are stated as not necessary parties to the revision. 8. As per the case of the petitioners, there is delay of 33 days in filing the revision and, therefore, filed I.A. No. 1 of 2020 in CRP. No. 1030 of 2020, seeking to condone the said delay. Respondents 10 and 11/decree holders 10 and 11, filed counter affidavit opposing the application. The petitioners filed additional affidavit, and the respondents 10 and 11 also filed additional counter affidavit. 9. First, I shall deal with the application seeking to condone the delay. 10. The case of the petitioners, as stated in the affidavit filed in support of the interlocutory application and in the additional affidavit, is that the execution petition was filed on 11.09.2019, and the trial court by the impugned order, directed issuance of warrant of attachment of C and D schedule properties, which are E.P. schedule properties, and that they entered appearance and filed vakalat on 16.12.2019. It is stated that they filed C.A. No. 907 of 2020 on 18.09.2020, and copy was made ready on 19.09.2020, and that when they obtained a certified copy of the order, they noticed that their counsel's name was shown in the order copy, as if they contested the E.P., which is not correct. Therefore, they counted the delay of 33 days from the date of their knowledge i.e., 19.09.2020. It is stated that by abundant caution they filed the present interlocutory application seeking to condone the delay in filing the revision, which is otherwise technically not required. 11. It is further stated that due Covid - 19 pandemic situation, the work of the lower court is obstructed and, therefore, they sought to condone the delay. 12. Respondents 10 and 11 filed a detailed counter affidavit and additional counter affidavit to the delay condonation application, disputing the averments made by the petitioners with regard to the merits of the case. With regard to delay, it is stated that there is absolutely no explanation for each and every day in filing the revision petition. 13. 12. Respondents 10 and 11 filed a detailed counter affidavit and additional counter affidavit to the delay condonation application, disputing the averments made by the petitioners with regard to the merits of the case. With regard to delay, it is stated that there is absolutely no explanation for each and every day in filing the revision petition. 13. It is stated that the trial court passed the impugned order on 13.11.2019, and that the petitioners never bothered to file copy application to obtain the orders from the lower court till 18.09.2020 i.e., for about 10 months and the petitioners cannot state that the delay is only 33 days in filing the above revision, and in fact the delay is 215 days and not 33 days. 14. As the delay is not properly explained by showing any sufficient cause, the delay cannot be condoned and the merits of the case cannot be gone into before condoning the delay, and the revision petition is liable to be dismissed. 15. Learned counsel appearing for the petitioners, apart from reiterating the averments made in the affidavit and in additional affidavit filed in support of the application for condoning the delay, relied on the orders passed by the Apex Court in Suo Moto Writ (Civil) No. 3 of 2020 dated 23.03.2020, 06.05.2020 and 10.07.2020 under Article 142, read with Article 141 of the Constitution of India with regard to extending the period of limitation due to Covid - 19 pandemic. 16. With regard to merits of the case, learned counsel for the petitioners, referring to the averments made in the affidavit filed in support of the delay condone application, would submit that the respondents 10 and 11, have earlier filed O.S. No. 70 of 2016 on the file of Additional District Judge, Vikarabad, for declaration of title and permanent injunction in respect of the very same schedule property against the petitioners herein and they could not secure any interim orders of temporary injunction and subsequently, by filing I.A. No. 1104 of 2019 dated 27.09.2019 they have withdrawn the suit. They also filed O.S. No. 184 of 2019 on the file of the present executing court i.e., the Senior Civil Judge, Rangareddy District, for declaration and perpetual injunction and they could obtained an ex parte interim order on 22.08.2019 in I.A. No. 810 of 2019 in O.S. No. 184 of 2019, and that on filing of a detailed counter affidavit, the trial court vide order and decree dated 17.10.2019 dismissed the I.A. No. 810 of 2019, categorically holding that the respondents 10 and 11 herein failed to establish their prima facie possession over the suit schedule property as on the date of filing of the suit, and that there is suppression of material fact of filing of earlier suit, and there is no balance of convenience in favour of the petitioners. Learned counsel further submits that after dismissal of the above said I.A., respondents 10 and 11 herein filed the present E.P. No. 31 of 2019 and thus have indulged in forum hunting, which is impermissible. 17. The learned counsel further submits that the trial court by the impugned order, while ordering notice, issued warrant of attachment of the E.P. Schedule properties. He submits that the trial court passed ex parte attachment order without following the procedure contemplated under Order 21, Rule 22 of C.P.C. He submits that trial court ought to have issued notice to the petitioners, when the E.P. was filed for execution of the decree for injunction in O.S. No. 76 of 2003 dated 24.04.2006, after two years. 18. He further submits that in the affidavit filed in support of the execution petition, there is no mention about the alleged date of interference by the petitioners. He also states that either petitioners, nor their vendors are the parties to the earlier suit in O.S. No. 76 of 2003. He submits that there cannot be any interference by the petitioners, since the property which the respondents 10 and 11 are claiming, is different, when compared to the properties of the petitioner, and the trial court while passing the impugned order, has not noticed the same. 19. He submits that there cannot be any interference by the petitioners, since the property which the respondents 10 and 11 are claiming, is different, when compared to the properties of the petitioner, and the trial court while passing the impugned order, has not noticed the same. 19. He further submits that respondents 10 and 11 were never in possession of A and B schedule properties, and the very same court dismissed I.A. No. 810 of 2019 in O.S. No. 184 of 2019, by categorically recording that the respondents 10 and 11 are not in possession of the suit schedule property. Therefore, straightaway issuing attachment warrant without noticing the above facts, and without issuing any show cause notice, is illegal, arbitrary and contrary to the provisions of Order 21, Rule 22 of C.P.C. 20. On the other hand, learned counsel appearing for contesting respondents 10 and 11, disputing the merits of the case, as submitted by the learned counsel for the petitioners, and reiterating the averments made in the counter affidavit and additional counter affidavit, vehemently opposed for condoning the delay, and sought for dismissal of I.A. No. 1 of 2020 and also the revision petition. 21. From the above averments, the case of the petitioners is that the impugned order issuing warrant of attachment was passed on 13.11.2019, and it was served on them, and they entered appearance by filing vakalat on 16.12.2019. They filed C.A. No. 907 of 2020 on 18.09.2020 and copy was made ready on 19.09.2020, and they obtained the certified copy of the impugned order. 22. When the petitioners entered appearance by filing vakalat on 16.12.2019, it is not known what made them to wait for about ten months for filing of copy application on 18.09.2020. They ought to have filed copy application on 16.12.2019 itself. Therefore, if the said date of knowledge of the impugned order, is taken into consideration, for computation of limitation of 90 days as prescribed under Article 131 of the Limitation Act, 1963, for filing of revision, it would be 16.03.2020, by which date, they should file the revision. But in the present case, the revision was filed on 22.09.2020 i.e., with a delay of about 175 days. 23. The reasons shown for delay is ensuing of Covid - 19 pandemic. But in the present case, the revision was filed on 22.09.2020 i.e., with a delay of about 175 days. 23. The reasons shown for delay is ensuing of Covid - 19 pandemic. The Apex Court in the Suo Moto Writ (Civil) No. 3 of 2020 dated 23.03.2020, considering the Covid - 19 pandemic, and in exercise of jurisdiction under Article 142 read with Article 141 of the Constitution of India, extended the period of limitation from 15.03.2020, till further orders to be passed in the said writ petition. The relevant portion is as under: "To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this court in present proceedings. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities." 24. Subsequently, vide order dated 06.05.2020, the Apex court passed order as under in the Suo Moto Writ (Civil) No. 3 of 2020: In case the limitation has expired after 15.03.2020 then the period from 15.03.2020 till the date on which the lock down is lifted in the jurisdictional area where the dispute lies or where the cause of action arises shall be extended for a period of 15 days after the lifting of lock down. In view of the above, the instant interlocutory application is disposed of." 25. Thereafter, the Apex Court passed orders in Suo Moto W.P.(C) No. 3 of 2020 dated 10.07.2020, extending the periods of time limit prescribed under Section 23(4) of the Arbitration and Conciliation Act, and under Section 12A of the Commercial Courts Act, 2015 and also issued guidelines for service of all notices, summons and exchange of pleadings. 26. The lockdown in the State of Telangana was imposed up to 30.06.2020 and thereafter, it was lifted subject to certain restrictions. 27. In the present case, the revision was filed on 22.09.2020. 26. The lockdown in the State of Telangana was imposed up to 30.06.2020 and thereafter, it was lifted subject to certain restrictions. 27. In the present case, the revision was filed on 22.09.2020. Even, after extending the period of limitation as per the orders of Apex Court, still there is delay of about 53 days in filing the revision. Thus, there is lapse on the part of the petitioners. 28. The case of the petitioners is that the impugned order was passed without any notice and their case is that they have not violated the perpetual injunction granted in O.S. No. 76 of 2003, and that the property which the respondents 10 and 11 are claiming, is different a property, when compared to petitioners' property, and there is dispute with regard to identity of the property. Their further case is that respondents 10 and 11 earlier filed suit in O.S. No. 70 of 2016 on the file of VI Additional District Judge, Vikarabad claiming declaration of title and permanent injunction in respect of the suit schedule property, and they could not secure any temporary injunction and subsequently, the said suit was withdrawn by them and thereafter they again filed another suit in O.S. No. 184 of 2019 before the present executing court i.e., Senior Civil Judge, Rangareddy District at Vikarabad, and though the said court initially granted ex parte interim order on 22.08.2019 in I.A. No. 810 of 2019 in O.S. No. 184 of 2019, subsequently on filing of counter affidavit, vide order and decree dated 17.10.2019, dismissed the application, categorically holding that the respondents 10 and 11 failed to establish their prima facie possession over the suit property as on the date of filing of the suit, and there is suppression of material fact of filing of earlier suit and there is no balance of convenience in favour of the petitioners therein i.e., the respondents 10 and 11. In my considered view, these are all the issues which are required to be considered, after providing opportunity to both the parties. 29. The Apex Court in the decision reported in N. BALAKRISHNAN vs. M. KRISHNAMURTHY (1998) 7 SCC 123 , held as under: ". . . The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. 29. The Apex Court in the decision reported in N. BALAKRISHNAN vs. M. KRISHNAMURTHY (1998) 7 SCC 123 , held as under: ". . . The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transfer into a good cause. Rule of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for reach remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shankuntala Devi Jain vs. Kuntal Kumari ( AIR 1969 SC 575 ) and State of West Bengal Vs. The Administrator, Howrah Municipality ( AIR 1972 SC 749 ). It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. The Administrator, Howrah Municipality ( AIR 1972 SC 749 ). It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the court should not forget the opposite party altogether. It must be born in mind that he is a looser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to latches on the part of the applicant the court shall compensate the opposite party for his loss." 30. Having regard to the facts and circumstances of the case, and the law laid down in the above judgment of the Apex Court, and due to prevailing Covid - 19 pandemic, I am of the considered view, that in order to do substantial justice between the parties, the delay needs to be condoned, by imposing costs. 31. For the foregoing reasons I.A. No. 1 of 2020 in CRP. No. 1030 of 2020 is allowed subject to payment of costs of Rs. 5,000/- (Rupees five thousand only) to the respondents 10 and 11, within a period of four weeks from the date of receipt of a copy of this order. 32. Coming to the civil revision petition, it is to be seen that O.S. No. 76 of 2003 was decreed on 20.04.2006 and the first appeal in A.S. No. 120 of 2006 was dismissed by the court of IV Additional District and Sessions Judge, FTC, Vikarabad, Rangareddy on 31.12.2007. The respondents 10 and 11, who claim to have purchased the subject property of decree holders 1 to 9, filed the present E.P. No. 31 of 2019 in O.S. No. 76 of 2003 on 11.09.2019, i.e., obviously after a period of two years from the date of the decree, alleging interference by judgment-debtors 8 and 9. 33. The respondents 10 and 11, who claim to have purchased the subject property of decree holders 1 to 9, filed the present E.P. No. 31 of 2019 in O.S. No. 76 of 2003 on 11.09.2019, i.e., obviously after a period of two years from the date of the decree, alleging interference by judgment-debtors 8 and 9. 33. Since it is stated that after passing of the impugned order, counter affidavit has already been filed in the execution petition, though several contentions are raised by the learned counsel in this revision, which are noted above, this court is of the opinion that those contentions can be considered by court below, and it is open for the parties to raise the same before court below, and court below is directed to dispose of the matter as expeditiously as possible, preferably within six months from the date of receipt of a copy of this order. 34. The revision petition is disposed of accordingly. 35. It is made clear that this court has not expressed any opinion on merits and it is for the court below to dispose of the execution petition in accordance with law, uninfluenced by observation or finding, if any, made in this order. 36. However, this order is subject to payment of costs as indicated above. 37. Interlocutory applications pending, if any, shall stand closed. No order as to costs in the revision.