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2021 DIGILAW 158 (AP)

Gudipalli Venkateswara Rao, S/o Polisu v. Chukka Sivakumari, W/o Late Sitaramaiah

2021-03-16

K.SURESH REDDY

body2021
ORDER : 1. As the issue is one and the same in both the CRPs, with the consent of both the counsels, this Court is passing common order. 2. C.R.P. No.3646 of 2019 is filed by the petitioner/defendants against the order, dated 4.09.2019 passed in I.A. No.257 of 2018 in O.S. No.42 of 2017 on the file of the Court of Senior Civil Judge, Mangalagiri. C.R.P. No.3645 of 2019 is filed by the petitioners/defendants against the order, dated 4-09-2019 passed in I.A. No.258 of 2018 in O.S. No.42 of 2017 on the file of the Court of Senior Civil Judge, Mangalagiri. 3. Brief facts of the case are that both the petitioners are husband and wife and they are defendants in the suit in O.S. No.42 of 2017 filed by the respondent herein, for recovery of money based on the foot of promissory note. In the above suit, after receipt of summons, petitioners approached one J.S.Ganesh, Advocate at Tenali, who is said to be their relative. The said Advocate informed them that he will entrust the vakalat to a Consel at Mangalagiri and on that premise, petitioners kept quiet. Subsequently, petitioners received notice in E.P. No.250 of 2017 on the file of the Court of Principal Senior Civil Judge, Eluru and they came to know that exparte decree was passed in the above suit. Having come to know about the same, petitioners filed two I.As i.e., I.A. No.257 of 2018 seeking to condone the delay of 228 days from 9.7.2017 to 21.2.2018 in filing the petition under Order IX, Rule-13 Code of Civil Procedure, 1908 (for short ‘CPC’) to set aside the exparte order and I.A. No.258 of 2018 seeking to set aside the exparte order, dated 8.6.2017, passed in O.S. No.42 of 2017. After considering the material on record, the learned trial Judge dismissed both the petitions, by orders, dated 4.09.2019. 4. Aggrieved by the said orders, the petitioners herein filed the present two civil revision petitions. 5. Heard learned counsel for the petitioners and learned counsel for the respondent. 6. Learned counsel for the petitioners submit that after receipt of summons in O.S. No.42 of 2017, the petitioners approached one S.J. Ganesh, Advocate at Tenali, who assured them that he will entrust the file to an advocate at Mangalagiri. 5. Heard learned counsel for the petitioners and learned counsel for the respondent. 6. Learned counsel for the petitioners submit that after receipt of summons in O.S. No.42 of 2017, the petitioners approached one S.J. Ganesh, Advocate at Tenali, who assured them that he will entrust the file to an advocate at Mangalagiri. Due to misfortune, the said Advocate has not filed his Vakalat on 17.4.2017, as such, the petitioners were set exparte and exparte decree was passed on 8.6.2017 by the learned Senior Civil Judge, Mangalagiri and it is only when they received notice in E.P.No.250 of 2017, they came to know about passing of exparte decree against them. He further submits that the Counsel, who was entrusted to defend their case, has expired, as such, they were not aware of the exparte decree. Hence, there is no negligence on their part and sought condoning the delay of 228 days in filing the petition under Order IX, Rule-13 CPC. He also points out that the petitioners were very much diligent even prior to the filing of the suit in view of the fact that they issued two reply notices, dated 8.10.2016 and 27.10.2016 to the plaintiff. It is further contended that the petitioners have no necessity to borrow money and that the promissory note was fabricated one. 7. In support of his contentions, learned counsel for the petitioners relied upon the judgment reported in Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 12 SCC 649 . The Hon’ble Supreme Court has framed certain guidelines in the above judgment, which reads as follows : 21.1(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalilse injustice but are obliged to remove injustice. 21.2(ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for the emphasis. 21.3(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for the emphasis. 21.4(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5.(v) Lack of bonafides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6(vi) It is to be kept in mind that adhernce to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7(vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8.(viii) There is a distinction between inordinate delay and a delay of shout duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach, whereas, the second calls for a liberal delineation. 21.9.(ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principal is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10(x) if the explanation offered is concocted or the grounds urged in the application are fanciful the Court should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12(xii) The entire gamut of facts are to be carefully scrutinized and approach should b based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13.(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. 21.13.(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are : 22.1(a) An application for cononation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the Courts are required to condone delay on the bedrock of the principle that adjudication of the lis on merits is seminal to justice dispensation system. 22.2(b) An application for condonation of delay should not be dealt within a routine manner on the base of individual philosophy which is basically subjective. 22.3.(c) Though no precise formula can be laid down regard being had to the concept of judicial discretion. Yet conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4 (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters. 8. On the other hand, the learned counsel for the respondent submits that no reasons have been assigned in the petitions filed by the petitioners in the above two IAs, which are filed seeking condonation of delay and setting aside the exparte decree. He further submits that the petitioners have not explained the delay properly and the petition was drafted in a very careless manner and they did not give any reasonable explanation for delay. He further submitted that the petitioners did not even mention the name of the Advocate to whom brief was entrusted at Mangalagiri. He further stated that the date on which, the counsel expired was also not mentioned and vague affidavit is filed without giving any sort of particulars. In support of his contentions, he relied upon the Judgment of this Court passed in C.R.P. No.1757 of 2014. In the above Judgment, this Court has considered the rulings of the Apex Court and held that in a matter of condonation of delay, judicial generosity cannot be shown, unless sufficient reasons were given for delay. 9. In support of his contentions, he relied upon the Judgment of this Court passed in C.R.P. No.1757 of 2014. In the above Judgment, this Court has considered the rulings of the Apex Court and held that in a matter of condonation of delay, judicial generosity cannot be shown, unless sufficient reasons were given for delay. 9. The learned counsel for the petitioners contended that the petitioners were diligent as reply notices were issued by them prior to the filing of the suit, which would indicate that they are prosecuting their case very diligently. Unfortunately, in the affidavit filed in support of both the IAs, a vague averment is made and the learned counsel for the petitioners admits fairly about the latches in their petition. But he pleads for the mistake on the part of their counsel in drafting the petition, the petitioners cannot be made to suffer. But, this Court is not inclined to accept the said contention, as now-a-days, it has become common to throw blame on the counsels. Unless, the petitioners furnish details to their counsel, he will not be in a position to mention the said details in the petition. 10. Coming to the aspect of condoning the delay, the Apex Court has specifically stated Supra in Esha Bhattacharjee’s Case, at Para 22.1(a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the Courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. It is also stated that on application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. But in the present case on hand, the reasons assigned for the delay are dealt in a routine manner and no details have been furnished explaining the delay, except stating their counsel died. Further, petition is silent as to the name of the counsel and also the date of his death. 11. But in the present case on hand, the reasons assigned for the delay are dealt in a routine manner and no details have been furnished explaining the delay, except stating their counsel died. Further, petition is silent as to the name of the counsel and also the date of his death. 11. Having considered the submissions on both the sides and on perusal of the record, it came to light that the petitioners have not given any reasons explaining the day-to-day delay and vague averment is made that they have entrusted the brief to a counsel at Mangalagiri and due to their misfortune, the said advocate passed away. Moreover, either in the affidavit filed before this Court, petitioners have not given the details of their Counsel or the date on which, he expired. They stated that it is only when they received notice in E.P. No.250 of 2017, they came to know about the exparte decree passed in O.S.No.42 of 2017. But the petitioners did not file any documentary evidence to prove their contention and simply stating that they have no knowledge about the decree till they receive notices in execution proceedings. Taking into consideration of the said aspect, this Court is of the considered view the contention of petitioners not having the knowledge of the suit proceedings, has no legs to stand. 12. In the present case, the petitioners failed to give sufficient and valid reasons for the delay. It is not the case of the petitioners that they are not aware of the proceedings. It is their specific case that they received summons in the suit. Generally the Court will not shut its doors on the grounds of limitation. At the same time, without sufficient reasons Courts cannot exercise discretion and condone the delay as a matter of judicial generosity as stated in the Judgment referred Supra. 13. After considering entire material on record, the learned trial Judge has rightly came to a conclusion and dismissed both the IAs. Therefore, this Court does not find any valid reason to interfere with the impugned orders passed by the learned trial Judge in both the applications. Accordingly, both the revision petitions are dismissed. 14. 13. After considering entire material on record, the learned trial Judge has rightly came to a conclusion and dismissed both the IAs. Therefore, this Court does not find any valid reason to interfere with the impugned orders passed by the learned trial Judge in both the applications. Accordingly, both the revision petitions are dismissed. 14. In that view of the matter, both the Civil Revision Petitions are dismissed and the orders, dated 4.09.2019 passed in I.A. No.257 of 2018 and I.A. No.258 of 2018 in O.S. No.42 of 2017 on the file of the Court of Senior Civil Judge, Mangalagiri, are hereby confirmed. No order as to costs. Consequently, miscellaneous petitions, pending if any, shall stand closed.