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2023 DIGILAW 229 (AP)

Marri Lakshmi Narayana Reddy, S/o. Ramanuja Reddy v. Annapareddy Lakshmi Narasamma, W/o. Vasudeva Reddy

2023-01-30

SUBBA REDDY SATTI

body2023
ORDER : Defendant in the suit filed the above civil revision petition under Article 227 of the Constitution of India against order, dated 30.01.2020 passed in I.A.No.894 of 2019 in O.S.No.213 of 2016 on the file of learned Senior Civil Judge, Sattenapalli. 2. Plaintiffs filed O.S.No.213 of 2016 against the defendant seeking partition of the suit schedule properties. 3. The defendant on receipt of summons got filed vakalat. However, he did not file written statement. Since written statement was not filed within time, defendant was set ex parte on 18.10.2016 and eventually ex parte decree was passed on 02.11.2016. On coming to know the same, petitioner filed I.A.No.894 of 2019 on 09.02.2017 under Section 5 of the Limitation Act to condone the delay of 69 days in filing the application to set aside the ex parte decree, dated 02.11.2016. 4. Along with I.A.No.894 of 2019, petitioner also filed I.A.No.927 of 2019 under Order IX Rule 13 of CPC to set aside the ex parte decree, dated 02.11.2016. 5. In the affidavit filed in support of I.A.No.894 of 2019, it was contended inter alia that the suit stands posted to 18.10.2016 for filing of written statement of the petitioner; that the petitioner could not file written statement, as he was suffering with Jaundice; that when he met his Advocate in February, 2017, he came to know about the decree passed by the trial Court. Hence, petitioner filed I.A.No.894 of 2019 to condone delay of 69 days is filing application to set aside ex parte decree and I.A.No.927 of 2017 to set aside the ex parte decree. 6. Respondents filed counter and opposed the same. 7. Trial Court, by order, dated 30.01.2020, dismissed I.A.No.894 of 2019. Aggrieved by the same, the present revision is filed. 8. Heard both sides. 9. Learned counsel for the petitioner would contend that petitioner has been suffering from Jaundice and hence, he could not contract his counsel resulting in petitioner’s non-filing of written statement. He would further submit that when petitioner met his Advocate, he came to know about the result of the suit. He would submit that since there is delay of 69 days, petitioner filed petition to condone the delay of 69 days in filing petition to set aside the decree, dated 02.11.2016. He would also submit that petitioner explained the reasons for delay. However, trial Court without considering the same, dismissed the application. 10. He would submit that since there is delay of 69 days, petitioner filed petition to condone the delay of 69 days in filing petition to set aside the decree, dated 02.11.2016. He would also submit that petitioner explained the reasons for delay. However, trial Court without considering the same, dismissed the application. 10. Learned counsel for respondents, on the other hand, would support order of the trial Court. 11. The point to be considered is whether petitioner has assigned proper and sufficient reasons to condone delay of 69 days in filing an application to set aside the ex parte decree, dated 02.11.2016? 12. Suit O.S.No.213 of 2016 is filed for partition of suit schedule property into four equal shares and for allotment of one such share to each of the plaintiffs with metes and bounds and put them in separate possession of their respective shares and for grant of mense profits. 13. Suit was posted to 18.10.2016 for filing of written statement of the petitioner. However, petitioner could not file written statement within time. Hence, he was set ex parte and eventually preliminary decree was passed on 02.11.2016. 14. As can be seen from the affidavit filed in support of I.A.No.894 of 2019, the contention of the petitioner is that he has been suffering from Jaundice, as such he could not contact his Advocate. Subsequently, when he contacted his Advocate in February, 2017, petitioner came to know about the result of the suit and immediately, he filed present application. 15. Condonation of delay be it shorter period or longer period, petitioner must assign valid and cogent reasons. 16. In N. Balakrishnan Vs. M. Krishnamurthy, AIR 1998 SC 3222 = (1998) 7 SCC 133 the Hon’ble Apex Court held that : “It is aximomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, 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.” 17. In the case on hand, the suit is filed for partition and as stated supra, in the affidavit filed in support of I.A.No.894 of 2019, petitioner contended that he has been suffering from Jaundice, as such he could not file written statement within time. When technical consideration and substantial justice are pitted against each other, Court will lean to consider substantial justice. 18. In Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy, (2013) 12 SCC 649 , the Hon’ble Apex Court broadly culled out the following principles : (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. (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 encapsule 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. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are : (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard 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. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challan manner requires to be curbed, of course, within legal parameters 19. Since the delay is 69 days and petitioner offered sufficient cause, to do substantial justice, Court below ought to have condoned delay of 69 days, by imposing costs on the petitioner. Since trial Court failed to exercise its jurisdiction, vested with it, this Court opines that the order under revision is liable to be set aside. 20. Therefore, this Civil Revision Petition is allowed. I.A.No.894 of 2019 stands allowed on the condition of petitioner paying an amount of Rs.1,000/- to each respondent/plaintiff within a period of three weeks from today. If the respondents are not inclined to receive costs, petitioner shall pay the same to the Mandal Legal Services Authority, Sattenapalli. 21. Since the suit is of the year 2016, trial Court, shall expedite hearing, in view of the circular issued by this Court vide R.O.C.No.560/OP/CELL/2022, dated 23.11.2022 and dispose of the same as expeditiously as possible strictly in accordance with law. As a sequel, all the pending miscellaneous applications shall stand closed.