HON'BLE SRI JUSTICE K.SARATH
CIVIL REVISION PETITION No.2954 OF 2022
ORDER:
1. This Civil Revision Petition under Article 227 of Constitution of India is filed challenging the order dated 06.09.2022 passed in I.A.No. 104 of 2020 in O.S. No.296 of 2001 on the file of Additional Senior Civil Judge, Ranga Reddy District at Ibrahimpatnam.
2. The respondent No.1 herein filed suit O.S.No.296 of 2001 on the file of Senior Civil Judge, Ibrahimpatnam initially against the respondents 2 to 5 herein for specific performance of the Agreement of Sale dated 07.04.2000, in which some of the defendants filed their written statements and some of the defendants remained ex parte. The said suit was decreed ex parte on 20.01.2020. The petitioner, who is the arrayed defendant No.9, filed an application in I.A.No.104 of 2020 under Section 5 of Limitation Act to 2 SK,J CRP NO.2954 of 2022 condone the delay of four (4) days in filing the application to set aside the decree dated 20.01.2020 and the said application was dismissed by the Court below, on contest, through impugned order dated 06.09.2022. Being aggrieved by the same the present revision is filed.
3. Heard the learned Counsel for the petitioner/defendant No.9 and the learned Counsel for the respondent No.1/plaintiff.
4. The learned Counsel for the revision petitioner submits that the Court below ought to have seen that the reasons stated by the petitioner herein in his affidavit filed in support of the petition in I.A.No.104 of 2020 are cogent and ought to have condoned the delay of four (4) days. Originally the suit was filed on the file of II-Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar and subsequently it was transferred to Additional Senior Civil Judge, Ranga 3 SK,J CRP NO.2954 of 2022 Reddy District at Ibrahimpatnam in the year 2017, where it was numbered as O.S.No.296 of 2001. The petitioner contending that after transfer of the suit the Counsel for the petitioner informed the petitioner that no date was given and after giving the date the same will be intimated to the petitioner. In the month of February, 2020 when the petitioner approached his counsel, he was informed that the court passed judgment and decree on 20.01.2020 against the petitioner and others and immediately he filed the petition in I.A.No.115 of 2020 under order IX, Rule-13 of Civil Procedure Code to set aside the ex parte decree dated 20.01.2020 along with the delay condonation petition in I.A.No.104 of 2020 under Section 5 of Limitation Act and the Court below not considered the facts and beyond the scope of the petition dismissed the petition and requested to allow the Civil Revision Petition, by setting aside the impugned order. 4
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5. The learned Counsel for the petitioner in support of his contention placed reliance on the following Judgment:
Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others 1
6. On the other hand the learned Counsel appearing for the respondent No.1/plaintiff contends that the affidavit of chief-examination of the plaintiff /PW1 was filed on 22.06.2016 and exhibits were marked therein on 10.07.2016, thereafter the matter was adjourned to 05.09.2019 for cross-examination of PW1 and on the said date as none appeared for the defendants 1 to 3, 10 to 16, the cross-examination of PW1 was recorded Nil. In spite of several opportunities given to the defendants Nos.6 and 9 till 19.08.2019, they did not choose to cross-examine PW1, therefore the cross-examination of PW1 was recorded Nil. Thereafter, PW2 filed his affidavit of chief-examination 1 (2013) 12 SCC 649 5 SK,J CRP NO.2954 of 2022 and as none of the defendants appeared to cross- examine PW2 his cross-examine was also recorded Nil and closed the evidence of the plaintiff and thereafter the matter was posted for the evidence of the defendants. Since none appeared for the defendants, the evidence of the defendants was closed and matter was posted for arguments, and thereafter the suit was decreed ex parte on 20.01.2020.
7. The learned Counsel for the respondent No.1 further submits that, nothing is whispered in the petition about the alleged GPA holder of the petitioner/defendant No.9 and straight away filed the present petition. There is no bar to the petitioner/defendant No.9 to file the petition on his own, but the written statement filed by his GPA holder is without any permission of the Court as required under Rule-32 and 33 of Civil Procedure Code and hence the pleas taken by the petitioner are not tenable 6 SK,J CRP NO.2954 of 2022 and only after depositing the balance sale consideration amount by the plaintiff, the petitioner filed I.A.No.104 of 2020 in O.S.No.296 of 2001 and there are no merits in the petition and requested to dismiss the civil revision petition.
8. After hearing both sides and perusing the record this Court is of the considered view that the petitioner/defendant No.9 filed in I.A.No.104 of 2020 in O.S.No.296 of 2001 under Section 5 of the Limitation Act to condone the delay of four (4) days in filing the application to set aside the decree dated 20.01.2020 passed in the suit and the said petition was dismissed by the Court below through impugned order.
9. The petitioner is the defendant No.9 in the suit and the same was decree ex parte on 20.01.2020. The suit was filed by the respondent No.1/plaintiff for specific performance of agreement of Sale dated 07.04.2000 against the petitioner and others in respect 7 SK,J CRP NO.2954 of 2022 of the suit schedule property. The petitioner has filed his written statement on 22.01.2009 through GPA holder. Originally the suit was filed on the file of II-Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar and subsequently it was transferred to Additional Senior Civil Judge, Ranga Reddy District at Ibrahimpatnam in the year 2017, where it was numbered as O.S.No.296 of 2001. The petitioner contending that after transfer of the suit, the Counsel for the petitioner informed the petitioner that no date was given and after giving the date the same will be intimated to the petitioner. In the month of February, 2020 when the petitioner approached his counsel he was informed that the court passed judgment and decree on 20.01.2020 against the petitioner and others and immediately he filed the petition in I.A.No.115 of 2020 under order IX, Rule-13 of Civil Procedure Code to set aside the ex parte decree dated 20.01.2020 8 SK,J CRP NO.2954 of 2022 along with the delay condonation petition in I.A.No.104 of 2020 under Section 5 of Limitation Act.
10. The Court below without taking into account of the averments in the delay condonation petition, given the finding beyond the scope of the petition and held that "the question of leading evidence by the petitioner/defendant No.9 does not arise as there were no pleadings on his behalf as no permission is sought from the court to file the written statement by the G.P.A holder and at the most he can cross-examine PWs.1 and 2 but the same was not availed by the petitioner and only after depositing the balance sale consideration by the plaintiff the present petition is filed to condone the delay and another petition under Order-IX, Rule-13 of CPC". But no reason was given by the Court below in rejecting the petition to condone the delay of four (4) days. It is settled law that there should be liberal and pedantic approach while dealing 9 SK,J CRP NO.2954 of 2022 with the applications for condonation of delay and the courts are not supposed to legalize injustice on technical grounds as it is the duty of the court to remove injustice.
11. The judgment relied on by the learned Counsel in Esha Bhattacherjee Vs. Managing Committee of Raghunathpur Nafar Academy and others (supra) squarely apply to the facts of the instant case and the delay of four (4) days has to be condoned. The finding given by the Court below in I.A.No.104 of 2020 in O.S.No.296 of 2001 is beyond the scope of the petition and the same is liable to be set aside.
12. In view of the above finding, the impugned order dated 06.09.2022 passed in I.A.No.104 of 2020 in O.S.No.296 of 2001 is hereby set aside and consequently, the said I.A No.104 of 2020 in O.S.No.296 of 2001 stands allowed.
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13. Miscellaneous petitions, if any pending in this revision, shall stand closed. There shall be no order as to costs.
_____________________ JUSTICE K. SARATH Date:03.10.2023 trr