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2022 DIGILAW 295 (TS)

Dudekula Abbas v. Koduru Maheshwar Reddy

2022-04-13

A.VENKATESHWARA REDDY

body2022
ORDER : This Civil Revision Petition is filed by the petitioner/defendant assailing the orders dated 31.10.2019 in I.A.No.563 of 2017 in O.S.No.32 of 2016 on the file of the learned Additional Junior Civil Judge, Jangaon. 2. Application in I.A.No.563 of 2017 was filed by the defendant under Section 5 of Limitation Act to condone the delay of 52 days from 23.10.2017 to 12.12.2017 in filing an application to set aside the ex-parte decree dated 23.09.2017. The trial Court having considered the rival contentions dismissed the said application. Feeling aggrieved by the same, the defendant has filed this Civil Revision Petition. 3. Heard learned counsel for the petitioner and the respondent. The submissions made on either sides have received given due consideration of this Court. 4. For the sake of convenience, the parties are referred to as plaintiff and the defendant as arrayed in the original suit. 5. The plaintiff has filed O.S.No.32 of 2016 for recovery of possession and removal of structures over the suit schedule land in Sy.No.516/AA, situated at Eravennu Village, Palakurthy Mandal, Warangal District. As per the record, on 17.02.2016, the defendant appeared, failed to file written statement in spite of several adjournments. Trial Court has also imposed costs. Finally the defendant was set ex-parte on 27.01.2017. Thereafter on recording ex-parte evidence and considering the material available on record, ex-parte decree was passed by the trial Court on 23.09.2017. 6. After obtaining decree, the plaintiff has filed EP No.60 of 2017 for execution of the decree. Thereafter, the present application is filed on 13.12.2017 by the sole defendant alleging that he is unnecessarily made as party to the suit. In-fact, the said house property belongs to his son and that without making him as a party, plaintiff illegally claimed the house property of his son, the above case was posted on 27.01.2017 for his written statement and on that day, he could not present before the Court due to ill-health and as such, he could not give instructions to the counsel for filing the written statement. When he recently contacted his counsel, he was informed about the ex-parte decree dated 23.09.2017. Accordingly, prayed to set aside the ex-parte decree by condoning the delay. When he recently contacted his counsel, he was informed about the ex-parte decree dated 23.09.2017. Accordingly, prayed to set aside the ex-parte decree by condoning the delay. Thus, there was a delay of 52 days in filing an application under Order 9, Rule 13 of CPC and the defendant has prayed to condone the said delay of 52 days from 23.10.2017 to 12.12.2017 in filing the application to set aside the ex-parte decree dated 23.09.2017. 7. It is pertinent to mention that no oral or documentary evidence is adduced before the trial Court, no material is placed to show that the petitioner was either sick or suffering from ill-health and unable to give instructions to his counsel during the relevant period. At the cost of repetition, it is stated that suit summons were served on the defendant for his appearance on 17.02.2016, till 27.01.2017 he failed to file the written statement and on that day since the defendant failed to file the written statement and also failed to pay the costs, he was set ex-parte and thereafter, almost after eight months i.e. on 23.09.2017 ex-parte decree was passed. 8. It is submitted by the defendant that on 27.09.2017 he was sick and unable to give instructions to his counsel. Later he contacted his counsel before filing this application and that on 12.12.2017 he was informed that ex-parte decree was passed. Be it stated that, subsequent to the ex-parte decree, the plaintiff has filed E.P.No.60 of 2017 for execution of the said decree and it is only after filing the execution petition, the defendant has come forward and filed this application under Section 5 of Limitation Act along with another application under Order 9, Rule 13 of CPC to set aside the ex-parte decree passed against him. 9. In this context, I may refer to the principles laid down by the Hon’ble Supreme Court in Esha Bhattacharjee Vs. Mg.Commit. of Raghunathpur Nafar Academy and others, 2013 (12) SCC 649 wherein the Apex Court while interpreting the provisions of Section 5 of the Limitation Act regarding condonation of delay, summarised the principles as follows:- (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 legalise injustice but are obliged to remove injustice. (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 applied in proper perspective to the obtaining fact-situation. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. (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. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. (vi) It is to be kept in mind that adherence 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. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. (viii) There is a distinction between inordinate delay and a delay of short 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. (ix) The conduct, behaviour 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 principle 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. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. (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. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 10. The law consistently laid down by the Apex Court says that the word ‘sufficient cause’ must be construed liberally to meet the ends of justice without adopting pedantic approach. But, exception to this test to be applied is whether the petitioner made out a sufficient cause or not? Thus, the Court has to examine the circumstances and if the Court satisfied that the cause shown by the petitioner is beyond his control, such cause is to be accepted as sufficient cause, which prevented the petitioner from appearing before the Court on specified date. If the Court finds that the petitioner is negligent and deliberately protracting the proceedings for one reason or the other, such person is disentitled to claim the benefit of Section 5 of the Limitation Act. Even for applying the principles laid down by the Apex Court in Esha Bhattacharjee Vs. Mg.Commit. of Raghunathpur Nafar Academy and others the petitioner did not place any material before this Court or before the trial Court indicating the details when he was sick. Even otherwise if he was sick on 27.01.2017 what made him in not giving instructions to his counsel from 27.01.2017 till the date of passing ex-parte orders dated 23.09.2017 is not explained. 11. Therefore viewed from any angle the petitioner was also not diligent in prosecuting the matter even after the ex-parte decree and he has filed the present application under Section 5 of the Limitation Act to condone the delay only after the plaintiff has filed E.P.No.60 of 2017 to condone the delay of 52 days in filing an application under Order 9, Rule 13 of CPC. 12. Thus, on an overall consideration of material available on record, it appears, the petitioner is designedly protracting the proceedings to sufficient length of time causing substantial delay at one stage or the other deliberately and failed to prosecute the proceedings with an intention to defeat the claim of the respondent/plaintiff. 12. Thus, on an overall consideration of material available on record, it appears, the petitioner is designedly protracting the proceedings to sufficient length of time causing substantial delay at one stage or the other deliberately and failed to prosecute the proceedings with an intention to defeat the claim of the respondent/plaintiff. In such circumstances, in my considered view, the petitioner is not entitled for the relief of condonation of delay of 52 days in filing the application under Order 9, Rule 13 of CPC. I do not find any jurisdictional error or infirmity committed in the order impugned and it is sustainable. 13. In the result, this CRP is dismissed confirming the orders dated 31.10.2019 in I.A.No.563 of 2017 in O.S.No.32 of 2016 on the file of the learned Additional Junior Civil Judge, Jangaon. In the circumstances of the case, the parties shall bear their respective costs. Miscellaneous petitions, if any, pending, in this CRP, shall stand closed.