THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU
CIVIL REVISION PETITION Nos.459 OF 2021 AND 481
2022
COMMON ORDER :
Being aggrieved by a common order of the learned
Principal District and Sessions Judge, Warangal in two
interlocutory applications in an unregistered appeal suit
vide I.A.No.1200 of 2019 and 1204 of 2019 dated
10.11.2021 whereunder the Court below allowed the
interlocutory applications, condoning the delay in
preferring the appeals by the petitioners/defendants, these
two revision petitions have been filed by the petitioner who
is respondent in the above said interlocutory applications
and plaintiff in the main suit. The petitioner herein has filed a suit vide O.S.No.809 of 2010 against the respondents herein for declaration of title and respondents herein have filed O.S.No.496 of 2007 for perpetual injunction to restrain the petitioner herein from interfering with the agricultural lands bearing Sy.No.771, 772 and 773 admeasuring Ac.6-27 gts., of Ramannagudem Village. Both the suits were clubbed and the learned II Additional 2 CRP Nos.459 AND 481 of 2021 Senior Civil Judge conducted joint trial and disposed both the suits by a common judgment dated 21.06.2018. The suit filed by the petitioner herein vide O.S.No.809 of 2010 was decreed and suit filed by the respondent vide O.S.No.496 of 2007 was dismissed (the trial was conducted by the Court below in O.S.No.496 of 2007).
2. Being aggrieved by the above said common judgment, the respondents herein sought to file two appeal suits, but as there was delay of 253 days in filing the appeal, they have filed I.A.No.1200 of 2019 and 1204 of 2019 under Order 41 Rule 3(a) C.P.C. with a prayer to condone the delay of 235 days in filing the appeal.
3. The learned District Judge disposed both the petitions vide a common order dated 10.11.2021 and allowed the petitioner subject to payment of Rs.500/- to the petitioner who is respondent in the above said petitions. Being aggrieved by the said order, the petitioner filed two civil revision petitions vide C.R.P.Nos.459 of 2022 and 481 of 2022. Even though two separate petitions are filed, the contentions of the petitioner in both petitions is one and the same. The following are the grounds on which 3 CRP Nos.459 AND 481 of 2021 the petitioner sought to set aside the above referred common order:
4. The petitioner has claimed that the Court below ought to have scrutinized the veracity of the reasons given by respondents for condoning the delay. The Court below ought to have seen that the respondents could not explain day to day delay, thereby they are not entitled to the relief claimed in the petitions.
5. The petitioner has claimed that the Court below ought not to have believed the medical certificate produced by the respondents in support of their contention since there was no proper verification with regard to the ailments referred and the treatment provided to the respondents. The petitioner has contended that the respondents filed petition seeking condonation of delay on the ground that the husband of the 1st respondent used to look after the affairs of the suit, but it is blatant lie since the husband of the 1st respondent died during 2013. Thereafter, the suit proceedings including the production of evidence is looked after by the 1st respondent. The petitioner further claims that even if it is believed that the 1st respondent was 4 CRP Nos.459 AND 481 of 2021 suffering from ill health, the other respondents ought to have taken care of the suit proceedings. He has also claimed that when he approached the Court below for police aid, the respondents herein have filed the appeal along with delay condonation petition as counterblast to his contention. But, there are no bonafidies in the context of the respondents, thereby he prayed for dismissal of the application filed by the respondents.
6. Heard both parties.
7. Now the point for consideration is:
Whether the Court below failed to appreciate the contentions of both parties and an irregular order? If so, whether it is liable to be set aside?
8. POINT As could be seen from the record I.A.No1200 of 2019 and I.A.No.1204 of 2019 are filed by 4 petitioners who are shown as respondents in the present revisions. In support of the petitions the 1st respondent herein filed her affidavit, stating that the trial Court failed to appreciate their evidence and dismissed their suit without considering their 5 CRP Nos.459 AND 481 of 2021 claim. The respondents have claimed that the husband of 1st respondent herein used to look after the suit proceedings and after his death the 1st respondent was taking care of the case` because the other respondents were already married and pre-occupied with their respective professions. The 1st respondent fell sick from August, 2018, thereby she took medical assistance from Dr.A.Sarvesham who advised the 1st respondent to take bed rest for quite a long time. She has obtained medical certificate from the said doctor and further submitted that soon after the recovery, she approached her counsel and as per the instructions of the Advocate, she filed the above referred interlocutory application for condoning the delay.
9. The petitioner herein opposed the petitions. The Court below having considered the rival contentions of both parties allowed the petitions by a common order. The learned District Jude having extracted the contentions of both parties on to the order and opined that as per the prescription filed by the 1st respondent it indicates that she was sick and she was provided medicines by the Doctor. Though the petitioner herein vehemently opposed the 6 CRP Nos.459 AND 481 of 2021 medical certificate and prescriptions. However, the Court below opined that if the petitioner herein intend to queston the medical certificate, he has got a chance to summon the doctor and examine him and as the prescription show the medicines provided, and as respondent No.1/petitioner, she has got good grounds to succeed in appeal, allowed the petition on costs of Rs.500/-.
10. The learned counsel for the petitioner herein has submitted that in view of abnormal delay in filing the appeal and it is for the respondents to explain each days delay before the lower appellate Court. They did not explain the delay but filed a medical certificate obtained from an unqualified self-styled medical officer. The Court below having placed the entire burden on the petitioner, simply allowed the petitions by observing that the petitioner if aggrieved by the contentions of the respondents, could have filed an application for summoning the medial officer for his cross examination which is unknown to law. When once the respondent wanted to prefer appeal and file delay condone petition, it is for them to establish and satisfy the delay by explaining cogent reasons. Even if the medical 7 CRP Nos.459 AND 481 of 2021 certificate issued by unqualified doctor is taken into consideration, still there is a delay in filing the appeal which was not explained by the respondents, thereby sought for setting aside the order.
11. In support of the claim, the petitioner herein filed the photocopy of the medical certificate which was filed by the respondents before the Court below. According to the medical certificate and prescription, the certificate was issued by one Dr.A.Sarvesham, B.A.M.S who claims to be a physician and surgeon. In fact, the qualification of the Medical Officer clearly shows that he did Bachelor of Ayurvedic Medical Sciences who cannot be considered as a medical doctor. The certificate issued by the said Dr.A.Sarvesham indicates that the 1st respondent was suffering from Hemiplegia from 08.10.2018 to 25.12.2018 and she was fit from 10.01.2019. Even, if this medical certificate is accepted to be true and correct, the respondents field the above stated interlocutory application on 22.04.2019. There is no explanation for the delay in filing the appeal. Even if this Court considered the medical certificate as a genuine one, still the respondents are under 8 CRP Nos.459 AND 481 of 2021 obligation to explain the delay in filing the appeal from 10.01.2019 till 22.04.2019. As rightly argued by the counsel for the petitioner, apart from the 1st respondent there are 3 more adult persons shown as respondents and there is no explanation form their side as to whey they could not prefer appeal against the judgments decided against them. The learned District Judge simply throwing the entire burden on the petitioner herein, allowed the petition only on the ground that the respondents claimed to have good grounds for winning the appeal. If really they have got good ground, they could have filed the appeal within the time and in the absence of any acceptable reasons for the delay even from January, 201+9 till April, 2019 the Court below ought not to have allowed the petitions.
12. Learned counsel for the portioner placed reliance on a judgment between Lingeswaran vs Thirunagalingam 1 wherein the Hon'ble Apex Court was pleased to observe that the "The Court has no power to extend period of limitation on equitable grounds and when once it is found 1 2022 2 RCR CIVIL 319 9 CRP Nos.459 AND 481 of 2021 that delay was not properly explained even no merits in application for condonation of delay, the Court shall not condone the delay and set aside the exparte decree.
13. In the above referred judgment, the Hon'bele Apex Court referred another judgment between Maniban Devaraj Shaw vs Municipal Corporation of Brihan Mumbai2 wherein it was observed as follows:
"The law of limitation is founded on public policy. The Limitation Act 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the Court for vindication of their right without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the legislature. At the same time the Courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation."
14. In the case on hand the contention of the respondents that husband of 1st respondent was looking after the case and in view of his death, the respondents 2 2012 5 SCC 157 10 CRP Nos.459 AND 481 of 2021 could not take steps proved to be false because the husband of the 1st respondent died way back in 2013. The medical certificate produced by the 1st respondent is nothing but a fake documents obtained may be by influencing the above referred unqualified doctor. Even, if that particular medical certificate is accepted, still the delay from 10.12.2019 to 22.04.2019 is not explained. Therefore, absolutely there are no grounds to condone the delay and set aside the decree in favour of the petitioner herein. Therefore, the petitioner is entitled to the relief sought for in both the petitions.
15. In the result, both the Civil Revision Petitions are allowed.
As a sequel, pending Miscellaneous Applications, if any, shall stand closed.
___________________________________ JUSTICE SAMBASIVA RAO NAIDU Date: 18-04-2023 Pssk