Nemani Anantha Padmanabham v. Nemani Krishna Mahira
2024-07-12
RAVI NATH TILHARI
body2024
DigiLaw.ai
JUDGMENT : RAVI NATH TILHARI, J. Heard Sri M. Sri Atchyut, learned counsel for the petitioners and perused the material on record. 2. The petitioner is the 2nd defendant in O.S.No.33 of 2016 on the file of the learned IV Additional District Judge, Kakinada. 3. The plaintiff/1st respondent filed O.S.No.33 of 2016, pending in the Court of the IV Additional District Judge, Kakinada. During pendency of the suit, the 1st defendant therein, namely Nemani Suryanarayana Murthy died on 30.03.2019. The plaintiff filed I.A.No.1265 of 2019 on 12.09.2019 to substitute legal representatives of the deceased 1st defendant, but there was delay and the application was not supported by any application for condonation of delay and for setting aside the abatement. Consequently, I.A.No.1265 of 2019 was rejected by order dated 09.09.2022. Challenging the said Order, the plaintiff/1st respondent filed CRP.No.2295 of 2022. During pendency of the said revision, the plaintiff/1st respondent, realizing said mistake, also filed I.A.Nos.915, 916 and 917 of 2023 in the suit to bring on record the legal representatives of the deceased 1st defendant along with the applications for condonation of delay and setting aside the abatement. In view thereof, CRP No.2295 of 2022 was dismissed as infructuous, but with the direction to the learned trial Court to expeditiously dispose of those applications pending in the suit, vide Order dated 06.10.2023. 4. The petitioner filed objection to the aforesaid I.A. Nos.915, 916 and 917 of 2023. 5. On consideration, the learned trial Court has allowed I.A.Nos.915, 916 and 917 of 2023 by the common Order dated 05.03.2024. Challenging the said Order, passed on those applications, the present revision petitions have been filed. 6. Learned counsel for the petitioner submits that there was delay of 1487 days, but the plaintiff in their application stated the delay as of 765 days. The petitioner filed objection pointing out the exact delay. His submission is that instead of considering the exact days of delay, the trial Court considering the delay only of 765 days, condoned the delay and allowed the applications. 7. On a specific query of the Court, learned counsel for the petitioner submits that the delay of 1487 days is from the date of death of the 1st defendant up to the date of filing of I.A.Nos.915, 916 and 917 of 2023.
7. On a specific query of the Court, learned counsel for the petitioner submits that the delay of 1487 days is from the date of death of the 1st defendant up to the date of filing of I.A.Nos.915, 916 and 917 of 2023. He submits that when the previous application was filed, there was also some delay, but that application was not supported by any prayer of condonation of delay or/and setting aside abatement. 8. The learned trial Court has considered the aspect of delay. It has observed that the date of death of the 1st defendant is 30.03.2019. The previous petition was filed on 12.09.2019. Excluding the period of 90 days from the date of death, an application should have been filed by the end of June 2019, but it was filed on 12.09.2019. The learned trial Court has further observed with respect to the present applications, that the reason for not filing the petition at the earliest was due to corona pandemic which engulfed the universe from March 2020. It found that the delay was properly explained and there was sufficient cause for condoning the delay and condoned the delay. 9. The submission of the petitioner’s counsel is that there was delay of 1487 days up to the date of filing of the applications for the second time. 10. In view of the facts not in dispute and the proceedings in CRP No.2295 of 2022 being pending against the first order of rejection dated 09.09.2022 and during pendency thereof, the present applications having been filed, after the Corona pandemic, this Court is of the view that, there would be no delay beyond the delay of 765 days, which was on the date of filing of the first application, and if there was any delay (i.e., 765 days as contended by the plaintiff in the suit) or as contended by the petitioner’s counsel (i.e., 1487 days), on filing of the present applications, the same has been properly explained. The 1st respondent was litigating in the proceedings in the High Court against the first order of rejection. Such rejection was on the ground that the application for substitution (first application) was not supported by any application for condonation of delay and setting aside the abatement. Such rejection was not on merits.
The 1st respondent was litigating in the proceedings in the High Court against the first order of rejection. Such rejection was on the ground that the application for substitution (first application) was not supported by any application for condonation of delay and setting aside the abatement. Such rejection was not on merits. During pendency of civil revision petition, the respondent filed fresh applications in the suit that cannot be considered as delay in filing the applications beyond the period of filing of first application. 10. The learned trial Court has condoned the delay on sufficient cause being shown i.e., Corona Pandemic, with such exercise of discretion, in a judicial manner which advances the cause of justice this Court finds no reason to interfere with. 11. In Collector, Land Acquisition, Anantnag v. Mst Katiji (1987) 2 SCC 107 the Hon’ble Apex Court in para-3 held as under: “3. The legislature has conferred the power to condone delay by enacting Section 5 [ Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.] of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on ”merits”. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice — that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that: “1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. 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.
2. 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. 3. “Every day's delay must be explained” does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the “State” which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the “State” is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing and passing-on-thebuck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression “sufficient cause”.
In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression “sufficient cause”. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as timebarred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides.” 12. In Ram Sumiran v. D.D.C (1985) 1 SCC 431 the Hon’ble Apex Court held as under: “…..In a country like ours where there is so much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on death of a respondent, the legal representatives have to be brought on record within a certain time. The ends of justice require that the application bringing the legal representatives of the deceased should have been granted….” 13. In Balram v. IIIrd Additional District Judge (1983) 2 SCC 419 the Hon’ble Apex Court observed that whether there was sufficient cause for the delay to be condoned and for abatement to be vacated were matters for the appellate Court. 14. In Kesar Bai v. Gram Panchayat, Gilund 2019 SCC OnLine Raj 600 the High Court of Rajasthan, taking into consideration the judgment of the Hon’ble Apex Court in the case of Ram Sumiran (supra) observed that though there was delay in taking the legal representatives on record, but if the order impugned in that case was permitted and the petitioners therein were not made party to that suit, then the rights of those petitioners shall remain undetermined. It was further observed that in the matter of legal representatives being brought on record, the learned Court below ought to be a little flexible. 15.
It was further observed that in the matter of legal representatives being brought on record, the learned Court below ought to be a little flexible. 15. In the view of the Court, in the matters of condonation of delay, liberal approach is to be adopted while considering sufficient cause, and in the matters of substitution, pending suit, more liberal approach is required to be taken. 16. This Court does not find any illegality in the order impugned warranting interference in the exercise of the jurisdiction under Article 227 of the Constitution of India, which is to be sparingly invoked. 17. All the civil revision petitions are dismissed. No order as to costs. Pending miscellaneous petitions, if any, shall stand closed in consequence.