Vanteddula Vanna Reddy vs K. Kamakshamma
2021 Latest Caselaw 2733 AP

            HON'BLE SRI JUSTICE M.VENKATA RAMANA

       I.A.NO.1 of 2019 in SECOND APPEAL No.455 of 2019

ORDER:

The petitioner as the appellant has preferred S.A.No.455 of 2019

against the decree and judgment in A.S.No.81 of 2011 on the file of the

Court of the learned VIII Additional District Judge, Anantapur, dated

22.08.2017. It was preferred in turn against the decree and judgment in

O.S.No.119 of 2017 on the file of the Court of the learned Principal Senior

Civil Judge, Anantapur.

2. The petitioner was the defendant in the suit. The respondents

were the plaintiffs. The suit was laid to declare the right of the

respondents and title to the plaint schedule property and for grant of

consequential permanent injunction in their favour and against the

appellant herein restraining him from interfering with their peaceful

possession and enjoyment of the same.

3. The property in dispute is a dry land of Ac.0-70 cents out of

Ac.1-75 cents in S.No.121-1 at Uravakonda of Anantapur District.

4. There is a delay of 576 days in presenting the second appeal.

5. The reason assigned by the petitioner to explain this delay is

that he was suffering from diabetes and high blood pressure. He further

stated that due to financial crisis, which he is facing, he could not present

the appeal within time. He further claimed that he has a very good case

on merits and to succeed in the second appeal. While canvassing against

the nature of the decree and judgment of the appellate Court that

confirmed the decree and judgment of the trial Court, the petitioner

contended that if the delay is not condoned and an opportunity is not MVR,J I.A.No.1 of 2019 in S.A.No.455 of 2019

given to him to present the second appeal, he would suffer irreparable

loss and hardship.

6. On behalf of the respondents, a counter-affidavit is filed denying

the claim of the petitioner on merits with reference to the circumstances

leading to presenting the second appeal after dismissal of the first appeal.

The respondents contended that there is no explanation offered by the

petitioner to condone such delay of 576 days nor any substantiating cause

therefor has been shown. It is the specific contention of the respondent

that the petition has been presented by the petitioner in a lackadaisical

manner without offering cogent reasons and the grounds alleged by him

are vague. It is also stated that the ailments suffered to by the petitioner

are co-morbidities which are generally present in people aged about 45

years. It is also stated that this reason is not substantiated by any medical

record. It is further contended by the respondents that on account of this

delay, a substantial right is accrued to the respondents, which cannot be

disturbed upon condoning the delay, since the application presented lacks

bona fides. Contending that the petitioner has no grounds to succeed nor

merit in his claim in this second appeal, the respondents requested to

dismiss this petition.

7. Heard Sri Manda Adam, learned counsel for the petitioner, and

Sri Challa Gunaranjan, learned counsel for the respondents.

8. Now, the point for determination is-"Whether the petitioner has

made out sufficient cause explaining the delay of 576 days in presenting

the second appeal?"

MVR,J I.A.No.1 of 2019 in S.A.No.455 of 2019

POINT:

9. The dispute is in relation to immovable property in a town

known as Uravakonda in Anantapur District. The parties pursued their

remedies from trial Court to the 1st appellate Court and now it has

reached this Court.

10. The petitioner has to explain the reasons for delay in

presenting the second appeal, making out substantial grounds and it is

also for him to establish that the reasons so set out are not suffering from

want of bona fides. Due diligence on the part of the petitioner is another

requirement in this process.

11. According to the petitioner, since he is suffering from diabetes

and hyper tension, he could not present the appeal in time. Another

ground urged by him is of his financial difficulties.

12. The objection of the respondents is that the ground based on

health condition of the petitioner is not substantiated by means of medical

record.

13. Had the petitioner produced medical record to support his

version i.e. of his suffering from diabetes and hyper tension, it would have

offered any amount of assistance to his contention. However, he has

chosen to affirm in his affidavit these factors that disabled him to present

the second appeal within time. Had the medical record is produced, it

would have offered only support to such version of the petitioner.

Therefore, the prime requirement is to consider is whether the averments

so set out offer reason to explain the delay.

MVR,J I.A.No.1 of 2019 in S.A.No.455 of 2019

14. A court is not expected to be pedantic in its approach when a

party intends to pursue his remedies which are legally available.

15. On behalf of the respondents, S.R.Vediappan and others v.

S.P.Ramalingam and others1 is relied on in this context to support

their contention. A learned single judge of Madras High Court while

referring to the facts and circumstances of the case where there is a delay

of 263 days in filing appeal in terms of Order-41, Rule-3A CPC, referred to

judgments of Hon'ble Supreme Court which in turn were referred to

Sundar Gnanaolivu v. Rajendran Gnanavolivu2. They are

"(1) In N. Balakrishnan versus M. Krishnamurthy (1998 (2) CTC

533), the position has been set out as under in para 14:

14. 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 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....

(2) In M.K. Prasad versus P. Arumugam (2001(6) SCC 176), it has been held as under in para 9.

9. Again in State of W.B. v. Administrator, Howrah Municipality and G. Ramegowda Major v. Special Land Acquisition Officer this Court observed that the expression "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fides is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant, in the absence of anything showing mala fide or deliberate delay as a dilatory tactic, the court should normally condone the delay.... (3) In Ram Nath Sao @ Ram Sahu & Others versus Gobardhan Sap & Others (2002(3) SCC 195 : 2002-3-L.W. 417), the position has been succinctly set out in para 12 which reads as under:

. 2020 SCC OnLine Mad 423

.2003 SCC OnLine Mad 32 MVR,J I.A.No.1 of 2019 in S.A.No.455 of 2019

12. ...Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner...."

16. Another ruling relied on for the respondents is a judgment of

Bombay High Court in Vithal vs. Akrambee3. Further reliance is placed

for the respondents in Govindu Vidyulatha vs. Movva Suri Babu4 in

this respect, in which the decision of Hon'ble Supreme Court, Lanka

Venkateswarlu vs. State of A.P.5 is referred. Another unreported order

in I.A.No.2 of 2019 in A.S.No.414 of 2019 of one of the learned Judges of

this Court dated 14.10.2020 is also relied on for the respondents.

17. A careful consideration of all these rulings indicated that it is in

the discretion of the Court in the given facts and circumstances to accept

the explanation or reason relating to delay. It is an unbridled and

unlimited power, yet, circumscribed by certain limitations. Particularly,

when a party approaches a Court in a casual manner without exercising

due diligence, the Court should be slow in accepting his version to

condone the delay.

18. Particular facts in this case pointed out not only the health

condition of the petitioner but also his financial difficulties. The financial

difficulties did have a great role and significance in pursuing the remedies

particularly, when a party intends to prefer an appeal to High Court. It

cannot be brushed aside on any ground including want of details. When

. 2014 SCC OnLine Bom 802

. 2019(2) ALT 185

. (2011) 4 SCC 363 MVR,J I.A.No.1 of 2019 in S.A.No.455 of 2019

the petitioner has sworn as to such facts in his affidavit explaining the

reasons for delay, upon consideration of the principles set out in all the

above rulings in application of either Section 5 of the Limitation Act or

Order-41, Rule-3A CPC, the reasons assigned by the petitioner need

consideration.

19. By condoning delay, at best the petitioner is given an

opportunity to pursue his remedy. At the same time, the respondents will

have opportunity to contest the matter. It is always desirable for the

parties to invite a decision on merits than relying on technicalities. The

delay as such in this case is explained by the petitioner. The approach of

the petitioner did not suffer for want of bona fides and the reasons

assigned by him to explain this delay, are not an outcome of want of due

diligence nor it has been a casual approach.

20. Therefore, for these reasons, delay of 576 days in presenting

the second appeal has to be condoned allowing this petition.

21. In the result, this petition is allowed condoning the delay of

576 days in filing the Second Appeal. No costs.

________________________ JUSTICE M.VENKATA RAMANA Dt: 30.07.2021 RR