Research › Search › Judgment

Andhra High Court · body

2022 DIGILAW 841 (AP)

Yerramneni Subba Mma v. Yerramneni Venkateswarlu

2022-09-06

BANDARU SYAMSUNDER

body2022
ORDER : 1. This Civil Revision Petition is filed by the petitioner/plaintiff under Section 115 of Civil Procedure Code (in short CPC) against the Orders passed by the learned Principal Senior Civil Judge, Ongole, in I.A.No.491 of 2012 in O.S.No.185 of 2008, dated 13.11.2014, wherein and whereby the learned trial Judge dismissed the petition filed by the petitioner/plaintiff under Section 5 of Limitation Act seeking to condone the delay of 339 days in filing petition under Order IX Rule 9 of C.P.C. 2. The case of the petitioner in brief before the trial Court is that she filed suit against the respondents/defendants for Partition of plaint schedule properties into four equal shares and allot one such separate share to her. She submits that previously suit was referred to Lok Adalat but it was not settled and then sent back to the regular Court and called on 25.03.2011 for trial but due to ill-health and old age, she could not attend before the Court on that day and her counsel was engaged in some other Court due to that there was no representation on the date when suit was posted and then trial Court dismissed the suit for default. It is also the contention of the petitioner that her advocate wrote letters to her address but she was not residing in Mangamuru village due to ill-health, she has been residing at her brothers house in Venganaguntapalem village and she could not contact her advocate to file petition to set aside dismissal order and delay of 339 days occurred in filing the petition. She prays to allow the petition. 3. The 1st respondent/D.1 filed counter denying averments in the affidavit of the petitioner. It is the contention of R.1 that there are no grounds to allow the petition and the petitioner is hale and healthy and she is very well know about the proceedings and filed petition only to drag on the proceedings. He prays to dismiss the petition. 4. The learned trial Judge after hearing both sides, dismissed the petition filed by the petitioner on the ground that the petitioner unable to explain inordinate delay in filing petition to set aside dismissal order 5. He prays to dismiss the petition. 4. The learned trial Judge after hearing both sides, dismissed the petition filed by the petitioner on the ground that the petitioner unable to explain inordinate delay in filing petition to set aside dismissal order 5. Aggrieved by the Orders passed by the executing Court, the present Civil Revision Petition is filed by the petitioner/plaintiff stating that Orders passed by the Court below is illegal, irregular and vitiated by in correct exercise of jurisdiction vested in it. It is the contention of the petitioner that trial Court erred in holding that she has not filed any proof to support of her ill-health, change of her address and not considered her age, due to her old age, she could not prove positively her ill-health by producing documentary evidence. It is also the contention of the revision petitioner that suit filed suit for seeking partition of family properties and R.1 is no other than her son and she has got right in the plaint schedule properties and if opportunity is not given to her rights will be affected in immovable properties involved in this suit. She prays to allow the revision petition. 6. Learned counsel for the revision petitioner mainly contended that due to old aged ailments, the petitioner could not proceed with the trial and as the petitioner was residing at her brothers house letters addressed to her by counsel not received thereby she could not file petition in time to set aside dismissal orders of the suit. She argued that in view of nature of the suit and an opportunity has to be given to the petitioner to proceed with trial as valuable rights of the parties involved in immovable properties. She prays to allow the petition. 7. Learned counsel for R.1 mainly contended that no documentary proof is filed to show that the petitioner was suffering from ill-health and she was residing at her brothers house due to that she could not receive intimation from her advocate. It is the contention of the learned counsel for R.1 that nature of ill-health also not mentioned in the affidavit of the petitioner, which petition is filed only to drag on the proceedings. He prays to dismiss the petition. 8. It is the contention of the learned counsel for R.1 that nature of ill-health also not mentioned in the affidavit of the petitioner, which petition is filed only to drag on the proceedings. He prays to dismiss the petition. 8. Now the issue that emerges for consideration of this Court is:- “Whether the Order under challenge is sustainable and tenable and whether the same warrants any interference of this court under Section 115 of C.P.C?” POINT:- 9. Admittedly, the suit is filed by the petitioner seeking partition of the plaint schedule immovable properties into four shares and allot one such share to her. There is no dispute about relationship between the parties as the petitioner is mother whereas R.1 to R.3 are her children. The said suit contested by R.1 by filing written statement by raising different pleas. Now, the contention of the petitioner is that she could not proceed with the trial of the case as she was suffering from ill-health and she was residing in brothers house, in some other village due to that she could not receive letters addressed to her by her advocate. It is pertinent to note that nature of ill-health and from which date to which date the petitioner was suffering from ill-health not specifically stated in the affidavit of the petitioner. It is also not stated in her affidavit where she took medical treatment and she also not filed any medical certificate to support her contention when she is seeking relief to condone the delay of 339 days in filing the petition under Order IX Rule 9 C.P.C. 10. The Hon’ble Apex Court in Pundlik Jalam Patil (D) by Lrs.Vs. Executive Engineer Jalgaon Medium Project & Another. in SLP (C) Nos.21011-21014/2007 in Civil Appeal Nos.6414/6417/2008, Judgment, dated 03.11.2008 held at Para Nos.22, 23, which reads as under:- “22. Basically the laws of Limitation are founded on public policy. In Halsbury's Laws of England, 4th Ed., Vol.28,p.266,para 605, the policy of the Limitation Acts is laid down as follows: "The courts have expressed at least three different reasons supporting the existence of statutes of limitation, namely, (i) that long dormant claims have more of cruelty than justice in them, (ii) that a defendant might have lost the evidence to dispute the stated claim, (iii) that persons with good causes of actions should pursue them with reasonable diligence." 23. Statutes of limitation are sometimes described as `statutes of peace'. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. This court in Rajender Singh and others vs. Santa Singh and others [ (1973) 2 SCC 705 ] has observed : "the object of law of Limitation is to prevent disturbance and deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches". In Motichand vs. Munshi [ (1969) 2 SCR 824 ], this court observed that this principle is based on the maxim "interest republicae ut sit finis litum, that is, the interest of the State requires that there should be end to litigation but at the same time law of Limitation are a means to ensuring private justice suppressing fraud and perjury, quickening diligence and preventing oppression. It needs no restatement at our hands that the object for fixing time limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.” 11. In the present case, except vague averments in the affidavit of the petitioner, no details are mentioned with regard to ill-health and from which date to which date, she was residing at her brothers house. The learned trial Judge rightly observed that the petitioner has not explained the inordinate delay of 339 days in filing the petition to set aside the dismissal order of suit for default. It is also observed by lower Court that a mere mentioning in the affidavit filed by the petitioner that she is sick and she changed her address without any supporting material, is not a sufficient ground to condone the delay. This Court did not find any illegality or irregularity in the Orders passed by trial Court, which warrants interference by this Court under Section 115 C.P.C. 12. In the result, the Civil Revision Petition is dismissed. No order as to costs. Consequently, miscellaneous petitions pending if any, shall stand closed.