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2022 DIGILAW 986 (AP)

Imtiaz Alias Imtiaz Basha v. J Sreenivasulu

2022-10-11

V.R.K.KRUPA SAGAR

body2022
ORDER: This civil revision petition is filed under Section 115 C.P.C. questioning the correctness of an order dated 12.02.2019 of learned Principal District Judge, Kurnool in I.A.No.1294 of 2017 in C.F.R.No.641 of 2017 in A.S.No.----of 2017. Defendant Nos.1 and 2 in the trial Court are the revision petitioners herein. The plaintiff before the trial Court is respondent No.1 herein. Defendant No.3 in the suit is respondent No.2 herein. 2. O.S.No.1267 of 2006 was filed by the plaintiff before learned Principal Junior Civil Judge, Kurnool and the prayer was concerning mandatory injunction for demolition of illegal constructions and for permanent injunction restraining the defendants therein from making any offensive constructions. After due trial, the suit was decreed in favour of the plaintiff. Finding that there was no response from the J.Drs., the decree holder sought for execution and filed E.P.No.4 of 2017 in O.S.No.1267 of 2006. While that execution proceedings were pending, defendant Nos.1 and 2, who lost their defence in the suit, thought of preferring an appeal. In the process, they found that there was 201 days delay and therefore, defendant Nos.1 and 2 filed I.A.No.1294 of 2017 under Section 5 of the Limitation Act praying the learned Principal District Judge, Kurnool to condone the delay. It is stated in the supporting affidavit that during the trial proceedings there was diligent participation however, erroneously trial Court decreed the suit in favour of the plaintiff and they sought for certified copies on 06.06.2016 and they were made ready on 18.06.2016 and the appeal was to be filed on or before 27.07.2016. However, it could not be filed before that date since petitioner No.2 is not worldly-wise and petitioner No.1 suffered from intermittent fever (PTB) and was very much worried about the decease and confined to the house and he took up treatment at K.M.Hospital, Kurnool and recently he recovered and because of the sickness he neither consulted his advocate nor his advocate informed him about the result of the suit. On 30.01.2017 they received notices in the execution petition and thereafter, petitioner No.1 was in survey of finding a senior lawyer and thereafter, he consulted the senior lawyer and preferred the first appeal and the delay is only because of these reasons. In the counter the facts averred in the petition are denied. On 30.01.2017 they received notices in the execution petition and thereafter, petitioner No.1 was in survey of finding a senior lawyer and thereafter, he consulted the senior lawyer and preferred the first appeal and the delay is only because of these reasons. In the counter the facts averred in the petition are denied. It is then stated that for 10 good years the defendants dodged this suit and efforts to settle the matter at DLSA were also frustrated by the defendants and despite decree, the directions were not obliged and while execution petition is pending, they now came up with second thought and the delay is not properly explained. For these reasons, he sought for dismissal of the petition. 3. Learned Principal District Judge enquired into the matter and recorded the observations and conclusions. In para Nos.6 to 10 of the impugned order, it is stated by learned Principal District Jude that for condoning the delay in preferring the first appeal, it was necessary to keep in mind the nature of the suit and the litigation that went before the learned trial Court and so saying the order narrated the facts and then it mentions the execution proceedings and the stage of it. It is also stated that parties to the litigation are neighbours to each other and that having contested the suit for 10 years and having lost the defence, the defendants remained quite till the E.P. was filed and it then recorded the conduct of the defendants as projected by the plaintiff/D.Hr. and stated that the delay is deliberate. At para No.8 it fairly mentioned that defendant No.1/petitioner No.1 before it filed documents pertaining to his sickness, which include a certificate of sickness issued by K.M.Hospital, Kurnool and the medical prescriptions all of which showed that he was suffering from PTB and recorded that he was advised to take treatment and rest from 01.06.2016 to 31.01.2017. While accepting the correctness of it, the learned Principal District Judge took the view that the sickness was not of such a nature that disabled him from contacting his lawyer and from preferring the appeal. It was with those reasons, it negatived the prayer and dismissed the petition. 4. While accepting the correctness of it, the learned Principal District Judge took the view that the sickness was not of such a nature that disabled him from contacting his lawyer and from preferring the appeal. It was with those reasons, it negatived the prayer and dismissed the petition. 4. Aggrieved by this, defendant Nos.1 and 2 in the suit filed this revision stating that the order impugned occasioned failure of justice and it was passed in derogation to the settled principles of law and as to why and how a liberal approach was needed in condoning delay petitions and how lower Court failed to give due regard to the participation in the trial process for 10 long years and sought to upset the impugned order. 5. Learned counsel for respondent No.1 supported the impugned order and stated that there are no bona fides on part of the petitioners in seeking condonation of delay and therefore, the appellate Court rightly dismissed the petition and there is no reason in interfere with it. 6. Learned counsel on both sides submitted their arguments. 7. The point that falls for consideration is: “Whether the cause shown by the revision petitioners before the first appellate Court was not properly considered and approach of the first appellate Court is against law? 8. Point: The prayer before the learned first appellate Court was under Section 5 of the Limitation Act and the same is extracted here: “For the reasons stated in the accompanying affidavit, it is therefore prayed that the Honourable Court may be pleased to condone the delay of 201 days in filing the appeal.” 9. Learned counsel for revision petitioners cited a few legal authorities. They are: 1. N.Balakrishnan v. M.Krishnamurthy, (1998) 7 SCC 123 , wherein while considering the petition filed under Section 5 of the Limitation Act, the Hon’ble Supreme Court of India held that there is no presumption that delay in approaching the Court is always deliberate. The words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice where the lower Court refused to condone the delay, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court. 2. 2. Collector, Land Acquisition, Anantnag v. Mst. Katiji, (1987) 2 SCC 107 , wherein the Hon’ble Supreme Court of India while speaking on Section 5 of the Limitation Act stated that the Supreme Court has been making a justifiably liberal approach in such matters but the message does not appear to have percolated down to all the other Courts in the hierarchy. It is stated that ordinarily a litigant does not stand to benefit by lodging an appeal late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. Explanation of every day’s delay does not mean a pedantic approach and there shall be a rational common sense and pragmatic approach. 3. State of A.P. v. Sayanna, 2000 SCC Online AP 285/ (2000) 4 ALT 38 (DB), wherein this Court while answering a reference placed before the Division Bench at para No.16 culled out various important principles for a Court of law to keep in mind while deciding applications for condonation of delay. 10. It is in the backdrop of above principles, the order under revision has to be examined. 11. Between the date of decree and the date of presentation of appeal before the first appellate Court, the delay that occurred was 201 days. In the absence of any delay in filing an appeal before the first appellate Court, it is a matter of right for the party to a litigation to prefer an appeal. Since there was 201 days delay the principles contained for condonation of such delay are to be considered and such consideration happens on the facts available on record. One important fact is about serious sickness suffered by revision petitioner No.1. He stated to have suffered PTB, which is explained at the bar before this Court as Pulmonary Tuberculosis. In support of the sickness averred in the affidavit, the prescription of medicines and certificates issued by the hospital where revision petitioner No.1 took treatment were filed. Nothing contrary was filed by respondent No.1 before the first appellate Court. He stated to have suffered PTB, which is explained at the bar before this Court as Pulmonary Tuberculosis. In support of the sickness averred in the affidavit, the prescription of medicines and certificates issued by the hospital where revision petitioner No.1 took treatment were filed. Nothing contrary was filed by respondent No.1 before the first appellate Court. Thus, the pleaded sickness being supported by documents have not been opposed by the opposite party, must be held as furnishing sufficient information to the learned Principal District Judge for his appreciation that revision petitioner No.1 was sick. In fact, sickness as such was accepted as correct by the learned Principal District Jude. However, the view taken was that the sickness was not shown to have been such which physically prevented the revision petitioner from preferring an appeal. In the process of such logic, one fact that was lost sight of is that in his sworn affidavit filed before him revision petitioner No.1 has not stated that he was confined to bed but he stated that he was confined to his house and he was advised rest by the doctors and he was more worried and anxious about his own health. Thus, one should see that a human being was worried about his own health and in such circumstances, it seems a little unreasonable to think that more than his health he must pay his attention to prefer an appeal within time. Pragmatic approach that was suggested by the Supreme Court in the earlier referred decisions is a matter for grasp at that stage. What really seems to have made the learned Principal District Judge to hold a little harsher view is that the revision petitioners protracted the suit for ten years and did not come forward for settlement at DLSA. It is such facts that really drew the lower Court a little emotional making it to take such a harsh stance. The fact that revision petitioner No.1 suffered sickness of such nature and was anxious from inside indicates that the cause of delay is not deliberate. At any rate, one could not say there were no bona fides in the claim made by the revision petitioners. When the litigation was fought for ten years, that is an indication that both parties are seriously worried about their rights over certain immovable property. At any rate, one could not say there were no bona fides in the claim made by the revision petitioners. When the litigation was fought for ten years, that is an indication that both parties are seriously worried about their rights over certain immovable property. While no one appreciates any delay in Court proceedings, the delay that occurred in a system by itself could not be a cause to prevent a party to the litigation from making an appeal to the first appellate Court. Section 5 of the Limitation Act permits a liberal approach as enunciated by the superior Courts and the inconvenience caused to the opposite party because of the conduct on part of a litigant in consuming the time must be compensated by costs. Viewed from that angle, this Court finds it difficult to agree with the reasons and conclusions arrived at by the lower appellate Court. This Court finds merit in this revision. The discretion has not been judiciously exercised by the lower appellate Court. This Court sitting in a revision shall hold the order is irregular and against law. Therefore, the impugned order shall be set aside. 12. In the result, this Civil Revision Petition is allowed setting aside the order dated 12.02.2019 in I.A.No.1294 of 2017 in C.F.R.No.641 of 2017 in A.S.No.----of 2017 on the file of learned Principal District Judge, Kurnool provided the revision petitioners herein pay an amount of Rs.2,000/- (Rupees two thousand only) as costs to respondent No.1 on or before 30.11.2022. If such payment is being made, I.A.No.1294 of 2017 in C.F.R.No.641 of 2017 in A.S.No.----of 2017 stands allowed. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.