K P Chandra Rao vs K Ravindranath Tagore
2021 Latest Caselaw 343 AP

           0 HON'BLE SRI JUSTICE M.VENKATA RAMANA

        CIVIL REVISION PETITION Nos. 94 & 420 of 2019
                             &
       CIVIL MISCELLANEOUS APPEAL No.7 & 229 of 2019

COMMON JUDGMENT :

       Civil Revision Petition No.94 of 2019 and Civil Miscellaneous Appeal

No.7 of 2019 are directed against the common order dated 07.12.2018 in

I.A.No.15 of 2016 and G.L.No.8 of 2016 in O.S.No.248 of 2007 on the file

of the Court of the learned Additional Senior Civil Judge (FTC), Gudivada

respectively.


       2. I.A.No.15 of 2016 was filed under Section 5 of the Limitation Act

to condone the delay of 993 days in filing petition G.L.No.8 of 2016 under

Order-9, Rule-13 CPC to set aside the ex parte decree. The 1st defendant

is the revision petitioner as well as the appellant in the above matters.


       3. Civil Revision Petition No.420 of 2019 and Civil Miscellaneous

Appeal No.229 of 2019 are directed against the common order in I.A.No.2

of 2016 and un-numbered I.A. in O.S.No.248 of 2007 dated 07.12.2018

on the file of the same Court respectively. The 2nd defendant is the

revision petitioner in I.A.No.2 of 2016 filed under Section 5 of the

Limitation Act to condone the delay of 948 days in filing petition in un-

numbered I.A. under Order-9, Rule-13 CPC to set aside the ex parte

decree in the suit.


       4. Since both these matters arise out of the proceedings relating to

the same suit against common orders of the trial Court, since arguments

are addressed in all these matters together, they are being disposed of by

this common order.
                                                                              MVR,J
                                              CRP Nos.94,420 & CMA Nos.7,229 of 2019


                                          2

       5. The parties as arrayed in the suit shall be referred to hereinafter

for convenience.


       6. The 1st and 2nd respondents as the plaintiffs instituted the suit

against the defendants 1 to 5 for the following reliefs:

"(a) Declare the registered sale deed dated 12.09.2006, Doc.No.

5377 /2006 of Sub Registry, Gannavaram, executed by D-3, D-4 and D-5 in favour of 1st defendant is null and void;

(b) Declare the registered sale deed dt. 12.09.2006, Doc.No.5378/2006 of Sub Registry, Gannavaram, executed by D1,D-3, D-4 and D-5 in favour of D-2t is null and void;

(c) to grant costs of the suit"

7. The dispute in the suit is in respect of two different extents of

Ac.0-12 cents each described in plaint 'B' and 'C' schedules respectively in

R.S.No.137/2 of Pedauvutupalli of Unguturu Mandal of Krishna District.

Both these extents together are Ac.0-24 cents as described in plaint 'A'

schedule.

8. The 2nd plaintiff is the daughter of the 1st plaintiff. The

defendants 1,3,4 and 5 and the 1st plaintiff are the sons of Sri Kommaraju

Raja Rao. The 2nd defendant is the son of the 3rd defendant. There is no

dispute that the entire plaint 'A' schedule property belonged to Sri

Kommaraju Raja Rao. He died on 12.05.1995.

9. The dispute is essentially with reference to claim set up by both

the parties to plaint 'B' and 'C' schedule extents. The plaintiffs claim that

Sri Raja Rao executed a Will dated 21.03.1994 bequeathing plaint 'A'

schedule property in favour of the 1st plaintiff out of which he had gifted

away plaint 'B' schedule extent of Ac.0-12 cents to the 2nd plaintiff under a

registered gift deed dated 31.08.2006. Complaint of the plaintiffs is also

that without manner of right, the defendants 3, 4 and 5 executed a sale MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019

deed in respect of 605 sq.yards out of plaint 'B' schedule property on

12.09.2006 in a fraudulent transaction in favour of the 2nd defendant and

that the defendants 1 and 3 to 5 executed another sale deed dated

12.09.2006 in favour of the 2nd defendant in respect of the remaining

extent of plaint 'A' schedule property shown in plaint 'C' schedule

fraudulently.

10. The defendants 1 and 2 contested the suit initially filing their

written statements mainly disputing the Will set up by the plaintiffs as a

rank forgery and supporting the sale of extents referred in the plaint in

favour of the 2nd defendant, being legal and valid.

11. When the suit was coming up for trial, it was dismissed for

default, on 09.11.2011. It was later on restored as per orders in

I.A.No.234 of 2011 dated 06.12.2012. Thereafter, the defendants 1 and 2

were set ex parte on the ground that they did not take part in the course

of trial leading to passing an ex parte decree on 19.03.2013.

12. The 1st defendant filed I.A.No.15 of 2016 on 07.01.2016 along

with a petition under Section 9, Rule-13 CPC to set aside the ex parte

decree, in G.L.No.8 of 2016. The main ground urged by the 1st defendant

to explain away the delay in filing the petition under Order-9, Rule-13 CPC

was that after the suit was dismissed for default, he was given to

understand that the matter was no more pending and that he was not

required to attend the Court. He contended that he came to know through

their villagers that the plaintiffs were trying to alienate the plaint schedule

properties, on which he caused enquiries in the concerned Court at

Gudivada and then learnt that the suit was restored and an ex parte

decree was passed against them on 19.03.2013. He further claimed that MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019

he did not know as to what happened after dismissal of the suit on

09.11.2011.

13. The 2nd plaintiff resisted the claim of the 1st defendant mainly

contending that there is huge delay of 948 days in filing the petition to set

aside the ex parte decree without explaining day to day delay. Contending

that no reasons are assigned by the 1st defendant in support of his claim,

it is stated that the petition so filed needs dismissal.

14. The contention of the 2nd defendant in I.A.No.2 of 2016 is also

with reference to want of knowledge of the proceedings in the suit after it

was dismissed for default. He further contended that his father-in-law Sri

Madala Bhaskar Rao, when was attending to his work at Sub Registrar's

office, Gannavaram, learnt that the 1st plaintiff was proclaiming that he

succeeded in the suit obtaining an ex parte decree and was proposing to

sell the plaint schedule property through certain real-estate agents for a

throw away price to make wrongful gain, causing loss to him. Thereafter,

according to the 2nd defendant, he enquired about the suit and then came

to know that his Advocate, who was then appearing in the suit Sri

Akkapeddi Srinivasa Rao, had passed away after the dismissal of the suit

for default.

15. The 2nd defendant also contended that on account of his

employment, then he was staying at Hyderabad and that his wife, who

was suffering from cancer, was being treated at Hyderabad and

Bengaluru, who also passed away later on. On account of this situation,

according to the 2nd defendant, he could not visit his native village. In

those circumstances, he requested to condone the delay and to set aside

the ex parte decree claiming that he has excellent chance to succeed in MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019

the suit. He further claimed that a paper publication was taken out against

him as substituted service in the suit, which is not sufficient service.

16. The 2nd plaintiff resisted this petition on similar grounds

denying the circumstances by which the 2nd defendant claimed that he did

not have knowledge of passing of an ex parte decree against him

including death of his learned counsel and also the wife of the 2nd

defendant while the 2nd defendant being employed at Hyderabad. There is

specific denial of ill-health suffered by the wife of the 2nd defendant from

cancer and consequent treatment given to her. The 2nd plaintiff also

contended that an opportunity was given to contest the matter in the

course of the suit proceedings which the 2nd defendant did not avail, that

forced the trial Court to set him ex parte.

17. Petitions of the defendants 1 and 2 were dismissed by the

learned trial Judge mainly on the ground that the reasons offered for

condonation of delay are not believable in as much as they were

represented by an Advocate when I.A.No.234 of 2011 was pending. Thus,

the trial Court did not accept their contention that they did not have

knowledge of the proceedings in the suit. The learned trial Judge also held

that the 2nd defendant failed to prove, producing acceptable material that

his wife suffered from cancer and that she had treatment at Hyderabad

and Bengaluru. On such grounds, the learned trial Judge dismissed all the

petitions by the impugned orders.

18. Heard learned counsel for the petitioners/appellants and the

respondents.

19. Now, the point for determination is-"Whether the defendants 1

and 2 made out sufficient cause explaining the delay in filing petitions MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019

under Order-9, Rule-13 CPC to set aside the ex parte decree and if in the

circumstances delay is required to be condoned including setting aside the

ex parte decree?

POINT:

20. The main reason asserted by both the defendants 1 and 2 in

support of their claim and as a reason to explain delay in filing petition

under Order-9, Rule-13 CPC is that they were not aware of the

proceedings of restoration of the suit by trial Court in I.A.No.234 of 2011

by an order dated 06.12.2012.

21. The fact which is not in dispute is that the suit was dismissed

for default on 09.11.2011. The plaintiffs filed I.A.No.234 of 2011 under

Order-9, Rule-9 CPC to set aside such default order.

22. The main contention of the defendants 1 and 2 is that they

never took part in the proceedings relating to I.A.No.234 of 2011 and the

order was passed behind their back.

23. The learned counsel for the 1st defendant in CRP No.94 of 2019

produced copies of the docket proceedings in I.A.No.234 of 2011 in the

course of hearing.

24. These docket notings recorded that Sri M.A.J.Kumar, an

Advocate, appeared for the defendants 1 and 2 in I.A.No.234 of 2011. For

the reason that no counter was filed in I.A.No.234 of 2011 on 08.11.2012,

a conditional order was passed directing the plaintiffs to lead evidence

producing witnesses and filing affidavits on 06.12.2012. On account of

compliance of this direction on 06.12.2012 the docket notings further

recorded that I.A.No.234 of 2011 was allowed.

MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019

25. The contention of the defendants 1 and 2 is that Sri

M.A.J.Kumar was never instructed by them nor they gave him vakalat to

represent in the above matter. Their further contention is that they have

complained against Sri M.A.J.Kumar to Bar Council of State of Andhra

Pradesh alleging mis-conduct and false representation on their behalf, in

collusion with the plaintiffs. Copies of such complaint are produced in the

course of hearing by both of them.

26. It is interesting to find that I.A.No.234 of 2011 was posted to

22.06.2012 for appearance of the respondents upon service of notice.

Since batta was not paid, obviously no notice was taken out to the

respondents therein viz., the defendants 1 and 2. On 22.06.2012, batta

was paid with petition and it was allowed condoning the delay. Thereafter

notice was directed to the defendants 1 and 2, posting the above petition

to 02.08.2012. The docket notings dated 02.08.2012 also recorded the

fact that batta was not paid and therefore, it is obvious that notices to

respondents/defendants 1 and 2 were not taken out. However, on that

day, Sri M.A.J.Kumar, Advocate, filed vakalat for the defendants 1 and 2

as per the docket entry dated 02.08.2012 and the matter was posted for

counter to 04.10.2012. This petition was again posted to 08.11.2012 for

counters from 04.10.2012. On 08.11.2012, the proceedings referred to

above were recorded and consequently on 06.12.2012 the petition was

allowed.

27. It is rather surprising how the proceedings dated 22.06.2012

recorded that batta was paid with petition for service of notice on

defendants 1 and 2 and again on 02.08.2012 it was recorded as if batta MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019

was not paid on which day Sri M.A.J.Kumar, Advocate, appeared for the

defendants 1 and 2.

28. Another ground urged by the 2nd defendant is that he came to

know that his Advocate, who was till then appearing in the suit Sri

Akkapeddi Srinivasa Rao died, after dismissal of the suit for default. The

2nd plaintiff did not specifically dispute this fact in her counter.

29. The 2nd defendant did not produce any medical record relating

to ailment suffered by his wife during that period.

30. With reference to appearance of Sri M.A.J.Kumar, Advocate for

the defendants 1 and 2 in I.A.No.234 of 2011 or otherwise, the affidavits

of the defendants 1 and 2 filed in support of the petitions are silent nor is

there any reference to the nature of the proceedings went on in

I.A.No.234 of 2011 questioning the same. It is contended for the

defendants 1 and 2 referring to the above circumstances that a fraud was

played on the trial Court in obtaining an ex parte decree against them, in

the above circumstances.

31. The learned counsel for the plaintiffs 1 and 2 strenuously

contended that the defendants 1 and 2 deliberately avoided their

appearance in the trial Court, who were given sufficient opportunity to

participate in the course of trial which they did not avail. The learned

counsel for the plaintiffs further contended that taking advantage of hike

in the value of the real-estate, the petitions were filed to set aside the ex

parte decree along with the petitions to condone the delay in filing them.

Thus, it is contended that both these petitions lack bona fides. Supporting

the order of the trial Court in I.A.No.234 of 2011 in restoring the suit, it is

contended that the suit was restored to the knowledge of the defendants MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019

1 and 2 and thereafter the suit continued. Thus supporting the reasons

assigned by the learned trial Judge in rejecting the contention of the

defendants 1 and 2, the learned counsel for the plaintiffs contended that

there is no reason to warrant interference with the impugned orders.

32. Delay in filing the petitions under Order-9, Rule-13 CPC by the

defendants 1 and 2 is quite enormous. At the same time, the close

relationship among the parties and the nature of the dispute in relation to

immovable property in between them cannot be overlooked. Both the

defendants were interested to contest the suit and therefore they filed

their written statements setting out their defence against the claim of the

plaintiffs.

33. The fact that they were not aware of restoration of the suit

consequent to the orders in I.A.No.234 of 2011, as such cannot be dis-

counted. Omission to refer this fact in the affidavit of the defendants 1

and 2, which is otherwise borne out of the record from the proceedings of

the trial Court itself in I.A.No.234 of 2011, is not fatal. When these facts

relate to the proceedings of the Court, want of pleading from the parties

by itself cannot be a reason to reject this ground set forth by the

defendants 1 and 2. The manner in which the proceedings went on,

particularly as recorded on 22.06.2012 and 02.08.2012, are reflections of

the manner by which the proceedings therein, were brought out as if both

the defendants 1 and 2 were represented by an Advocate whom they had

duly engaged.

34. It is not as though the defendants remained quiet against Sri

M.A.J.Kumar, Advocate, in respect of his role in this matter. They also

complained to the Bar Council of the State of Andhra Pradesh. This MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019

complaint strengthens giving a touch of authenticity, in questioning the

nature of proceedings went on therein, by the defendants 1 and 2.

Therefore, the grounds so urged by the defendants 1 and 2 on this score

require consideration.

35. The contention of the 2nd defendant resting upon death of his

Advocate who appeared then in the matter and his wife's illness due to

cancer which occupied his time during the relevant period also cannot be

easily be brushed aside. Want of production of medical record as to ill-

health of his wife when he clearly stated that she was suffering from

cancer and on account of which she passed away can have no bearing.

Possibly the learned trial Judge could have given certain attention to such

fact without standing on the technicality for want of supporting medical

record.

36. In the given facts and circumstances, having regard to the

nature of dispute between the parties, the learned trial Judge should have

been liberal in considering their request. Merely because, the delay is

huge, it cannot by itself a reason to reject an application filed under

Section 5 of the Limitation Act. In fact, this question was considered by

the Hon'ble Supreme Court in N.Balakrishnan v. M. Krishnamurthy1

where it was observed as under:

"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

. (1998) 7 SCC 123 MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019

such finding, much less in revisiional 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."

37. This ruling was followed in M.K.Prasad vs. P.Arumugam2.

38. In Collector, Land Acquisition, Anantnag and another

vs. Mst. Katiji and others3 relied on for the defendant No.1 certain

criteria are laid down in exercise of discretion in the process of liberal

approach, under Section 5 of the Limitation Act. Relevant observations in

para-3 of this ruling are 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 CPC, 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.

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

.(2001)6 Supreme Court Cases 176

. (1987) 2 Supreme Court Case 107 MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019

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.

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."

39. These observations are consistently referred to in later

judgments like Hemlata Verma vs. M/s. ICICI Prudential Life

Insurance Co.Ltd., and another 4.

40. Sufficient cause as propounded by defendants 1 and 2 needs

consideration on the above guidelines. In view thereof, the reasons so

assigned by the defendants 1 and 2 therefor require acceptance.

41. It is an accepted practice and the Court needs to take judicial

notice of the fact that the parties usually rely on their learned counsel for

communication in respect of any pending matters in the Court. Particularly

in the scenario as is seen in this case, where the suit was initially

dismissed for default, whenever restoration petition is filed, it is proper for

any party or litigant to expect information in respect thereof from their

learned counsel. In case of 2nd defendant, unfortunately, his learned

counsel, who was appearing earlier and who also filed written statement

on his behalf, passed away thereafter. In the above circumstances, it

cannot be stated that the 2nd defendant was not vigilant in pursuing the

matter. Added to it, ill-health of his wife should have come in his way to

attend in this matter. Therefore, diligence expected from him was

entangled in the circumstances he was placed in.

. MANU/SC/1584/2019=2019 5 AWC4704SC MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019

42. In M.K.Prasad vs. P.Arumugam (2 supra) also relied on for

the defendant No.1 the nature of discretion expected to be exercised is

stated to advance substantial justice and its cause.

43. N.Balakrishnan vs. M.Krishnamurthy (1 supra) also held

that the primary function of a Court is to adjudicate a dispute between the

parties and to advance substantial justice. Relevant observations in this

ruling in paras 12 and 13 are as under:

"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]1SCR1006 and State of West Bengal v. The Administrator, Howrah Municipality, [1972]2SCR874a .

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."

44. In the same context, on behalf of the petitioners different

judgments of this Court in Andari Govindaiah vs. Vemula

Venkatamma (died) and others5, Kavali Narayana and others vs.

Kavali Chennamma6, Pramod Kumar Sharma and others vs.

. 1995(3) ALT 685

. 2005(1) ALT 805 MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019

Upender Kumar Agarwal7 and P.Buchanna v. B. Yadagiri8 are relied

on.

45. However, on behalf of the plaintiffs, Oriental Aroma

Chemical Industries Ltd., vs. Gujarat Industrial Development

Corporation and another9 and D.Gopinathan Pillai vs. State of

Kerala and another10 are relied on contending that there are no

circumstances as such in this case to warrant exercise of discretion in

favour of the defendants 1 and 2. Observations in Oriental Aroma

Chemical Industries Ltd. (9 supra) in para-8 are relevant in this

context, which are extracted hereunder:-

"8. ....... The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106........"

46. Sympathy cannot be a factor to consider in this type of cases,

according to the contention of the plaintiffs, relying on D.Gopinathan

Pillai (10 supra).

.1995(1) ALT 539

. 2017(3) ALT 596

.2010(5) SCC 459

.2007 SCC 322 MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019

47. Sufficient cause required to be made out by the defendants to

explain delay in filing petitions under Order-9, Rule-13 CPC is based on

facts. The facts and circumstances in this case, as discussed supra, reflect

that the reason set out by the defendants 1 and 2 of want of knowledge

of the proceedings in the suit from the time when it was attempted to be

restored by the plaintiffs, prima facie, stands to acceptance. When they

choose to set out specific defence in the written statement before the suit

was dismissed for default, they would not have chosen to abandon their

defence if they had come to know of the restoration of the suit. They

should have come to know, in the circumstances set out by them, as to

passing of ex parte decree and immediately thereafter, they came up with

appropriate applications under Order-9, Rule-13 CPC along with the

petitions under Section 5 of the Limitation Act to set aside the ex parte

decree. Therefore, their conduct in approaching the Court for this purpose

is appreciable. In fact, it reflected their action in good faith to contest the

claim of the plaintiffs in the suit. Thereby, want of due diligence on their

part cannot be inferred.

48. Therefore, they should be given an opportunity to contest the

suit.

49. Applications filed under Order-9, Rule-13 CPC by the

defendants 1 and 2 were also considered by the learned trial Judge and

they were dismissed by the common orders now impugned. The reason

set out in the petition filed under Section 5 of the Limitation Act and the

one filed under Order-9, Rule-13 CPC when are identical, the Court is

bound to allow the petition filed under Order-9, Rule-13 CPC or under MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019

Order-9, Rule-9 CPC, as the case may be, when once an application under

Section 5 of the Limitation Act is allowed.

50. The trial Court is expected to consider a petition filed under

Section 5 of the Limitation Act in the first instance. It cannot as such

consider an application filed under Order-9, Rule- 13 or Order-9, Rule-9

CPC, as the case may be, along with an application filed under Section 5

of the Limitation Act.

51. The reason is this: unless an application under Section 5 of the

Limitation Act is allowed, question of entertaining the application for the

relief stated above either to set aside the ex parte decree or to restore the

suit, cannot arise. If the petition filed under Section 5 of the Limitation Act

is allowed, its effect will definitely influence the nature of consideration in

later applications of nature referred to above. However, once an

application filed under Section 5 of the Limitation Act is dismissed, further

consideration of applications filed along with it either for setting aside the

ex parte decree or for restoration of the suit cannot arise. After dismissal

of an application filed under Section 5 of the Limitation Act, any such

application pending should necessarily be closed. There need not be any

specific order thereon except recording the fact that in view of the

dismissal of an application filed under Section 5 of the Limitation Act, it

should be closed. It more appears as a feature of administrative effort

than consideration in judicial terms.

52. More often than not and of late, the trial Courts are rather

failing to follow this time tested practice. It is a technical requirement and

has substance. At times, the trial Courts are numbering both the petitions

filed under Section 5 of the Limitation Act and under Order-9, Rule-13 or MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019

Order-9, Rule-9 CPC together without understanding the purpose and

object behind numbering an application under Section 5 of the Limitation

Act first and fall out of such application.

53. Similar is the approach seen of the trial Court in the present

matters, which has to be detested. The trial Courts must know and

understand that the procedural requirements are not mere formalities and

that they do not have jurisdiction, power or authority to flout such

procedural requirements with impunity. Though the procedure is stated to

be a handmaid to advance cause of substantial justice, it is a requirement

by which the procedural discipline is prescribed which the Courts should

follow.

54. In view of these circumstances, rejecting the objections of the

plaintiffs 1 and 2, the contentions of the defendants 1 and 2 are accepted

in explaining the delay in filing applications under Order-9, Rule-13 CPC.

In view of what is stated above, it is desirable for the trial Court to

consider the petitions filed under Order-9, Rule-13 CPC by the defendants

1 and 2 separately. They were not even numbered in the trial Court. It is

rather surprising to find that petitions filed under Order 5 of the Limitation

Act and the one filed under Order-9, Rule-13 CPC were considered

together without bearing in mind the implications and the impact they

would have. It is desirable to direct the learned trial Judge to consider

those applications filed under Order-9, Rule-13 CPC separately, of the

defendants 1 and 2 upon allowing both the C.R.Ps.

55. In the result, C.R.P.No.94 of 2019 and C.R.P.No.420 of 2019

stand allowed. No costs. Consequently, I.A.No.15 of 2016 and I.A.No.2 of

2016 in O.S.No.248 of 2007 on the file of the learned Additional Senior MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019

Civil Judge (FTC), Gudivada, filed by the defendants 1 and 2 respectively

are allowed. Delay in filing petitions under Order-9, Rule-13 CPC is

condoned. The trial Court is directed to number the petitions filed under

Order-9 Rule-13 CPC by the defendants 1 and 2, call for counters, if they

are not available on record, from the plaintiffs and shall dispose of after

hearing the parties concerned, on merits.

56. In view of the above direction, both the CMA Nos.7 of 2019

and 229 of 2019 are disposed of. No costs.

As sequel thereto, pending miscellaneous petitions, if any, shall

stand closed. Interim Orders, if any, shall stand vacated.

________________________ JUSTICE M.VENKATA RAMANA Dt: 25.01.2021 RR MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019

HON'BLE SRI JUSTICE M.VENKATA RAMANA

CIVIL REVISION PETITION Nos. 94 & 420 of 2019 & CIVIL MISCELLANEOUS APPEAL Nos.7 & 229 of 2019

Dt:25.01.2021

RR