Telangana High Court
Ganamaina Kanakaiah vs Ganamaina Prasad on 15 March, 2024
Author: P.Sree Sudha
Bench: P.Sree Sudha
HONOURABLE SMT. JUSTICE P.SREE SUDHA
C.R.P.No. 6720 of 2018
ORDER:
This revision is filed against the order, dated 27.08.2018, passed by the learned VI-Additional District Judge, Siddipet, in I.A.No.663 of 2017 in A.S.No. Nil of 2017.
2. Revision petitioner (Defendant No.1) filed the aforesaid application under Section 5 of Limitation Act seeking to condone the delay of 1240 days in preferring the appeal against the judgment and decree passed in O.S.No.59 of 2007, dated 29.04.2014, on the file of Principal Junior Civil Judge, Siddipet.
3. The appellate Court, on Consideration of the entire material available on record, held that there is no sufficient cause to condone the delay of 1240 days in preferring the appeal and accordingly dismissed the application.
PSS, J CRP No.6720 of 2018 2
4. Aggrieved by the aforesaid order, the revision petitioner/defendant No.1 filed the present revision contending that the appellate Court failed to appreciate that the revision petitioner herein, who is not well conversant with the procedure and having been cheated by one K.Narasimha Reddy, could not examine himself and also could not led any evidence to support his case. It is further contended that he came to know about the decreeing of the suit when he received a notice in an application for appointment of commissioner and as such the delay was caused, which is neither wilful nor wanton. Therefore, he requested the Court to allow the revision by setting aside the order of the appellate Court.
5. Heard both sides and perused the entire material placed on record.
6. Respondents 1 to 4 herein filed the suit being O.S.No.59 of 2007 against the revision petitioner and respondents 5 to 8 herein for partition of the suit schedule PSS, J CRP No.6720 of 2018 3 property into three equal shares with metes and bounds and to allot one such share to the plaintiffs and also to appoint an advocate commissioner to ascertain the mesne profits derived from the plaint schedule property and to deliver 1/3rd share to the plaintiffs. Revision petitioner/D1 filed written statement denying the claim of the plaintiffs. Defendants 2 to 4 remained ex parte. It was observed in the judgment of the trial Court that though defendant No.1 pleaded in his written statement that suit schedule properties were already partitioned in between father of the plaintiffs, himself and defendant No.2, he has not filed any oral or documentary evidence to prove his contention and as such the plea of defendant No.1 was not considered. Accordingly, the suit was decreed preliminarily on 29.04.2014 for dividing the properties into three equal shares with metes and bounds.
7. Petitioner herein contended that after receiving summons in the suit, he engaged an advocate Sri L.Saibaba, PSS, J CRP No.6720 of 2018 4 with the help of one Kurella Narasimha Reddy, and filed vakalat and written statement on his behalf, but he never contacted the said advocate on the advice of said Narasimha Reddy. He further contended that whenever he asked the said Narasimha Reddy, he used to state that the suit is pending even after receiving money continuously from him for giving it to the advocate. He further contended that he came to know about the decreeing of the suit when he received a notice in an application for appointment of advocate commissioner. He further contended that due to misguiding and cheating of the mediator, he did not attend the Court and adduce evidence on his behalf.
8. When once the revision petitioner/D1 engaged an advocate, it is for him to approach the advocate directly and pursue the litigation properly, but he failed to do so. A written statement has been filed on behalf of defendant No.1, but he did not adduce evidence either oral or documentary.
PSS, J CRP No.6720 of 2018 5
9. Learned Counsel for the revision petitioner relied upon a decision of Allahabad High Court in Ramesh Chandra Objector v. Seth Ghanshiam Das 1, wherein it was held as follows:
"12. A decree is defined in S.2 (2), Civil P.C. as "the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit." This may be either preliminary or final or partly preliminary or partly final. A decree is preliminary when further proceedings have to be taken when the suit can completely be disposed of."
10. He also relied upon a decision of the Supreme Court in Raheem Shah and others vs. Govind Singh and others 2, wherein it was held as under:
"The legislature has conferred the power to condone delay by enacting Section 5 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 1 AIR 1955 ALLAHABAD 552 2 MANU/SC/0829/2023 PSS, J CRP No.6720 of 2018 6 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.
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 non-deliberate 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.
PSS, J CRP No.6720 of 2018 7
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."
11. He also relied upon a decision of the Supreme Court in Sheo Raj Singh (Deceased) through Legal Representatives and others vs. Union of India and another 3, wherein it was held as under:
"Expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay."
12. In this case, the main contention of the revision petitioner/D1 is that he entrusted the matter to the mediator, K.Narasimha Reddy, and whenever he contacts the mediator to know the stage the case, he misguided him and also cheated him saying that the suit is pending. In 3 (2023) 10 Supreme Court Cases 531 PSS, J CRP No.6720 of 2018 8 fact, the mediator advised the revision petitioner not to contact the advocate and as such he could not directly contact the advocate. He further contended that partition of the suit schedule properties was already done long back among the brothers during the lifetime of their father and that father of the plaintiffs got his share and that no opportunity was afforded to substantiate his version.
13. In the light of aforesaid facts and circumstances of the case and in view of the parameters laid down by the Apex Court in the aforementioned decisions, this Courts finds it just and reasonable to condone the delay of 1240 days in preferring the appeal against the judgment and decree of the trial Court, dated 29.04.2014, passed in O.S.No.59 of 2007 so as to enable the revision petitioner/D1 to represent his case in appeal.
14. Accordingly, the Civil Revision Petition is allowed by setting aside the impugned order, dated 27.08.2018, passed by PSS, J CRP No.6720 of 2018 9 the appellate in I.A.No.663 of 2017 in A.S.No.Nil of 2017. There shall be no order as to costs.
Miscellaneous petitions, if any, pending, shall stand closed.
_______________________ JUSTICE P.SREE SUDHA 15.03.2024 Gsn