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2024 DIGILAW 287 (AP)

Gaddam Venkata Subbaiah v. Bareddi Vivekanada Reddy

2024-02-27

B.S.BHANUMATHI

body2024
ORDER B.S Bhanumathi, J. - This revision is filed under Section 115 CPC challenging the order, dated 29.11.2023, dismissing I.A.No.536 of 2020 in unnumbered appeal filed before the Court of the Principal District Judge, Kadapa, under Order 41 Rule 3A CPC to condone delay of [1113] days in filing the appeal against the judgment and decree, dated 23.01.2017, passed in O.S.No.525 of 2011 on the file of the Court of Additional Senior Civil Judge, Kadapa. 2. The petitioner/appellant filed the suit to cancel the registered sale deed, dated 06.01.2011, executed by him in favour of the defendants and for perpetual injunction. The suit was dismissed on contest. While filing the appeal, I.A.No.536 of 2020 was filed to condone delay of [1113] days in filing the appeal stating that he engaged another advocate to prosecute the case in appeal and that his file relating to the lower Court was misplaced by his previous counsel in his office and the same was traced recently before filing the petition, and therefore, the delay in filing the appeal is neither willful nor wanton. 3. The petition was opposed by filing counter of the respondent/plaintiff. The reasons stated for the delay are unsupported by any evidence and that the certified copy of the decree and judgment were obtained within a month after the pronouncement of judgment and it cannot be expected that the senior counsel appearing for the petitioner would misplace the bundle and the reasons to condone the delay are invented for the purpose of filing the petition and are not acceptable. 4. After hearing both parties, the appellate Court dismissed the petition observing that the delay of [1113] days is not properly explained by placing proper material to substantiate the cause for the delay. 5. Aggrieved by the order, this revision petition is filed. 6. Ms. V.V. Gnanusha, learned counsel representing the counsel for the petitioner submitted that when there are no mala fides in seeking to condone the delay nor is it dilatory strategy of the petitioner, a Court has to adopt a liberal approach in construing 'sufficient cause' for condoning the delay, however length the delay may be, just for the purpose of deciding the matter on merits rather than throwing it on technicalities. She further submitted that an opportunity can be given to the petitioner/appellant to contest the case by imposing costs to condone the delay, particularly because no third party interest was created till now and thereby, no prejudice would be caused to anybody including the respondents. She further submitted that there is no intention to drag on the appeal since the petitioner has interest in the property and would like to get the decision as early as possible. She placed reliance on the decision in N. Balakrishnan Vs. M. Krishnamurthy, AIR 1998 SUPREME COURT 3222, wherein at paras 9, 12 & 13 held as follows: '9. It is axiomatic 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 uncontainable 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 regional jurisdiction, unless the exercise of discretion was on wholly 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. 12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari: [1969] 1 SCR 1006 and State of West Bengal v. The Administrator, Howrah Municipality [1972] 2 SCR 874. 13. This Court has held that the words "sufficient cause" Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari: [1969] 1 SCR 1006 and State of West Bengal v. The Administrator, Howrah Municipality [1972] 2 SCR 874. 13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.' She further stated that the length of the delay is no ground not to condone the delay. 7. On the other hand, Ms. P. Kusuma, learned counsel representing the counsel for the respondents submitted that the reason stated for the delay is not worthy of credit since the certified copies of the judgment and decree were applied immediately on the next day of the pronouncement of the judgment and obtained within a month from the date of passing of the judgment after they were made ready by the Court and it is unbelievable that a senior counsel who appeared for the plaintiff would misplace the file. She further submitted that misplacing the file is not a ground sufficient to condone the abnormal delay of [1113] days particularly when the day-to-day delay is not explained. She further submitted that the petitioner has taken two grounds for the delay, viz., (i) the advocate is changed; and (ii) the file was misplaced in the office of the previous counsel and that both the grounds are not sustainable to establish the 'sufficient cause' for the delay. She further submitted that the petitioner has taken two grounds for the delay, viz., (i) the advocate is changed; and (ii) the file was misplaced in the office of the previous counsel and that both the grounds are not sustainable to establish the 'sufficient cause' for the delay. She further argued that the appellate court rightly dismissed the petition after considering the merits of the matter on both sides and having found no sufficiency in the cause pleaded for the delay. She further stated that the length of delay does not matter where there is sufficiency of cause for the delay and she has further referred to the decision followed by the trial Court in its order, Jampala Poornanda Venkateswara Prasad Vs. Roshini Chit Funds and Finance Private Limited and 2 others, 2021 (2) AMLJ 376 , wherein it was held that in ordinary course, Courts are adopting liberal approach while construing the word 'sufficient cause' to condone delay, exercising discretion that conferred on the Court, but such power has to be exercised judiciously and not mechanically ignoring the negligence of a party in prosecuting the proceedings. 8. The phrase 'sufficient cause' has not been defined anywhere nor can it be defined within a straight jacket formula. It is to be examined in the light of the facts and circumstances in each case. But, there will be certain parameters to guide the discretion of a Court for its judicious approach while dealing with the matter of condoning the delay and finding sufficient reasons to condone such delay. 9. In the present case, the reason stated by the petitioner is that the file relating to trial Court was misplaced by the counsel, who dealt with the matter in the trial Court and later, a new counsel was engaged and the file was traced in the office of the previous counsel. Misplacing of the file is a very common reason stated in a routine and casual manner even when the actual reason could be else. It is not the case of any party that any interest to third party was created over the property till now. It can be a factor to consider while condoning the delay as condonation of delay may affect third party, if in case any interest is created to third party. It is not the case of any party that any interest to third party was created over the property till now. It can be a factor to consider while condoning the delay as condonation of delay may affect third party, if in case any interest is created to third party. It is true that the period of delay does not matter so long as the sufficiency of cause is established. If a routine and casual reason is shown just for the purpose of condoning the delay, the object of law of limitation would be defeated particularly when the delay is abnormal like in the present case. The concept of liberal approach cannot be stretched too far to permit the casual and routine reasons to be assigned for condoning the delay. As such, since the appellate Court rightly appreciated the merits in the matter and there is no illegality or irregularity in the order or failure of exercise of jurisdiction by the appellate Court or exceeding its jurisdiction, this Court does not find any reasons to interfere with the order impugned in the revision. 10. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed.