Manchineni Srihari vs Manchineni Kesava Rao
2021 Latest Caselaw 3921 AP

       THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

                           I.A.No.1 of 2019
                                 AND
                          A.S.No.266 of 2019

ORDER:-

       The petitioners herein had filed O.S.No.99 of 2010 before

the VIII Additional District Judge, Vijayawada against the

respondent herein, for partition of certain properties on the

ground that the said properties are joint family properties. This

suit was dismissed by a Judgment and decree dated

28.12.2017. Aggrieved by the same, the present appeal has

been filed by the petitioners.

2. As there was a delay of 351 days in filing the first

appeal, the present application has been filed to condone the

said delay. The affidavit filed along with this I.A was signed by

the 1st petitioner/appellant. He was the 1st Defendant in the

suit. In this affidavit, it was stated that the 1st petitioner had

obtained certified copies of the decree and judgment dated

28.12.2017 and entrusted the same to his counsel to challenge

the said decree and judgment; that the 1st petitioner had no

knowledge that he had to apply for a certified copy of the decree

and judgment; that the advocate in the trial Court also did not

inform him about the said requirement; that the advocate in the

trial Court informed him about the requirement of a certified

copy much later and consequently, an application for the

certified copy of decree and judgment was applied on

29.12.2018, and the same was delivered on 06.02.2019; and

that the advocate in the trial Court did not give the said certified

RRR,J I.A.No.1 of 2019 and A.S.No.266 of 2019

copy to the 1st petitioner and it was only after pursuing the

matter that the 1st petitioner was able to obtain the said copy

and filed the present appeal, due to which there was a delay of

351 days.

3. The respondents filed a counter affidavit stating that

both the original suit as well as the present appeal were an

abuse of the process of Court and the present litigation was the

second round of litigation as the father of the 1st petitioner had

lost in the earlier round. The respondents also stated that the

allegations against the counsel in the trial Court by the 1st

petitioner are incorrect and have been made for the purpose of

making out a ground for condoning the delay.

4. The matter came up for hearing before the Court.

The curious fact in the case is that the 2nd petitioner filed a

supporting affidavit in I.A.No.1 of 2019. In this affidavit, it was

stated that the 7th defendant in the suit, who is the sister of the

1st Petitioner herein was supporting the claim of the petitioners

and was in fact taking care of the advocate fees and other

requirements in the suit; that the 2nd petitioner and his sister,

who is the 3rd petitioner, had visited the office of their counsel

before the trial Court only once to sign the affidavit and vakalat

for filing an application declaring them as majors in the above

suit; that even though the 7th defendant in the suit had assured

that she would pay the advocate fees, the counsel in the trial

Court did not inform the 2nd petitioner about the dismissal of

the suit which came to light only in April, 2018 when the 1st

petitioner contacted the said counsel and enquired about the

RRR,J I.A.No.1 of 2019 and A.S.No.266 of 2019

status of the suit; that the said counsel assured the 1st

petitioner that the 7th defendant had informed the counsel that

the matter would be settled amicably out of the Court and the

appeal need not be filed against the said decree and judgment

dated 28.12.2017; that their advocate had informed them that

an application for certified copy of the decree and judgment had

already been filed and he would handover the said certified copy

as and when the same becomes ready; that in the month of

December, 2018 while they were waiting for an amicable

settlement, they came to know that the respondents were trying

to alienate items 1 to 11 of the suit schedule property to 3rd

parties and when they enquired into the issue, their counsel

told them that the 7th defendant had informed him that the

other respondents were not interested in settlement and that an

appeal should be filed; that when they approached the counsel

in the trial Court for the certified copy of the judgment and

decree, he informed them that by oversight he had not applied

for the certified copy and had thereafter applied on 29.12.2018,

which was received on 06.02.2019; and that thereafter, the said

counsel had informed them that the limitation had expired and

the costs awarded by the trial Court to an amount of

Rs.1,48,804/- had to be deposited in the trial Court before an

appeal could be filed before the High Court and consequently, it

took considerable time to arrange the said amount of

Rs.1,48,804/-, which is the reason why the appeal was filed

with a delay of 351 days.

RRR,J I.A.No.1 of 2019 and A.S.No.266 of 2019

5. During the course of hearing, the learned counsel

for the petitioners relied upon the judgments of the Apex Court

in K.Chandra Sekhara Rao & Ors. Vs. District Collector,

Hyderabad & Ors1, State of Andhra Pradesh Vs. A.Swamy

Naidu2, N.Mohan Vs.R.Madhu3 and Bhirchandra Shankar

More Vs. Balu Gangaram More and Ors.,4. The learned counsel

for the respondents relied upon the judgments of the Apex Court

in Esha Bhatlacharjee Vs Raghunathpur Nafar Academy &

Ors., Vs. Managing Committee of Raghunathpur Nafar

Academy & Ors.,5 and Brijesh Kumar & Ors. Vs. State of

Haryana6. The learned counsel for the petitioners contended

that in view of the judgments cited by him, the law of limitation

should be construed liberally to further justice and the counsel

for the respondents contended that limitation should be

construed strictly.

6. To my mind, the entire line of judgments cited by

the learned counsel for the petitioners would not be relevant to

the present case.

7. A comparison of the pleadings of the 1st petitioner

and the 2nd petitioner explaining the delay in filing the appeal

would clearly show that the said pleadings are contradicting

each other. These contradictions are not minor contradictions

which can be explained away as a case of miscommunication

2016 (6) ALD 272

(2000) 1 ALD 677

AIR 2020 SC 41

(2019) 4 ALT 42

5.(2013) 12 SCC 649

6. AIR 2014 SC 1612

RRR,J I.A.No.1 of 2019 and A.S.No.266 of 2019

between the parties or misunderstanding of the facts. The 1st

petitioner contends that the entire delay was on account of his

ignorance of law, the wrong advice given by his counsel in the

trial Court and the negligence of the counsel in obtaining the

certified copies of the Judgement and Decree. The 2nd petitioner

avers that both the 1st and 2nd petitioner relied upon the 7th

defendant in the suit to take care of their expenses and also to

settle the matter and it was only after she failed to settle the

matter that they came forward to file the appeal. It is significant

to note that there is not even a whisper about the role of the 7th

defendant in the entire affair, in the affidavit of the 1st Petitioner.

8. The question of considering whether a liberal view

should be taken or not, while considering the question of

condonation of delay, would depend on a variety of factors

including the reasons set out in the application filed for such

condonation. In view of the stark contradictions in the two

affidavits, neither of the affidavits can be accepted. Further,

condoning the delay on the basis of such contradictory

pleadings would definitely not be in the interest of furthering

justice.

9. Accordingly, the application to condone the delay of

351 days in filing the appeal is dismissed. Consequently the

appeal is also dismissed.

___________________________________ JUSTICE R.RAGHUNANDAN RAO Date : 05-10-2021 RJS

RRR,J I.A.No.1 of 2019 and A.S.No.266 of 2019

THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

I.A.No.1 of 2019 in A.S.No.266 of 2019

Date : 05-10-2021

RJS