C Yashoda vs U Sudheera
2022 Latest Caselaw 3216 AP

     HONOURABLE SRI JUSTICE NINALA JAYASURYA

       CIVIL REVISION PETITION No.1394 of 2021

ORDER:-

      The present Revision Petition is preferred against an

Order passed in I.A.No.210 of 2019 in A.S.No.17 of 2016 dated

01.12.2021 on the file of the Court of the Judge, Family Court-

cum-V Additional District Judge, Tirupati.


2.    Heard Mr.N.Ranga Reddy, learned counsel for the

petitioner and Mr.Srinivas Basava, learned counsel appearing

for respondent Nos.1 to 3.

3. The petitioner herein is respondent No.1 in the above

referred I.A. The respondents herein filed the said I.A., under

Section 5 of the Limitation Act (for short 'the Act') and Section

151 of Code of Civil Procedure (for short 'C.P.C.'), seeking to

condone the delay of 430 days in presenting the application for

setting aside abatement of the appeal against the 5th appellant

which occurred due to non-impleadment of the legal heirs of

deceased-5th appellant. The petitioner/1st respondent filed her

counter opposing the said application. The learned Appellate

Court after considering the matter condoned the delay and

allowed the petition on payment of costs of Rs.1,000/- to the

petitioner herein. Aggrieved by the said Orders, the present

Revision Petition came to be field.

NJS,J CRP No.1394 of 2021

4. Learned counsel for the petitioner submits that the Order

of the learned Appellate Court in condoning the huge delay of

430 days is perverse and liable to be set aside. He submits that

the respondent Nos.1 to 3 herein were negligent and

deliberately protracting the proceedings on one pretext or the

other and application seeking to condone the delay is lacking in

bona fides. He further submits that in the absence of proper

explanation for each day's delay, the same cannot be

condoned, in a causal manner. He submits that the reasons as

assigned by the respondents, would not satisfy the

requirements of sufficient cause or justify the condonation of

delay. He further submits that the learned Appellate Court

failed to appreciate the matter in a correct perspective and as a

result of condoning the huge delay of 430 days, the rights and

interest of the petitioner would be seriously prejudiced.

5. The learned counsel placing reliance on the decisions in

Kshitij Infraventures Pvt. Ltd., v. Mrs.Khorshed Shapoor

Chenai and Others1 and Jampala Poornanada

Venkateswara Prasad v. Roshini Chit Funds and Finance

Private Limited and Others2 submits that the Order under

Revision is liable to be set aside.

6. Per contra, the learned counsel for the respondent Nos.1

to 3 supported the Order under Challenge, inter alia,

1 2022 (1) ALT 533 (D.B.) (T.S.) 2 2021(1) ALT 650 (D.B.) (A.P.)

NJS,J CRP No.1394 of 2021

contending that the learned Appellate Court after due

consideration of the matter and by relying on the decisions of

the Hon'ble Supreme Court was inclined to condone the delay

of 430 days by recording cogent reasons. He submits that

under the said circumstances, no interference is called for

unless this Court comes to a conclusion that the Order under

Revision is perverse or suffers from material irregularities,

which are not present in the case on hand. He further submits

that the application filed by the respondents herein is to

condone the delay in filing the application for setting aside the

abatement of appeal and in such cases, it is settled law that the

delay in making such applications shall be dealt with more

leniently than the applications seeking condonation of delay in

filing the appeals. In any case, the learned counsel submits

that as opined by the appellate Court, no prejudice would be

caused to the petitioner, if the delay in filing the application to

set aside the abatement of appeal is condoned. The learned

counsel, making the said submissions, seeks dismissal of the

Revision Petition.

7. This Court had considered the submissions of the learned

counsel for the respective parties, perused the material and

also gone through the decisions, on which reliance is placed by

the learned counsel for the petitioner.

8. At the outset, it may be noted and as rightly pointed out

by the learned counsel for the respondents, in considering the

NJS,J CRP No.1394 of 2021

reasons for condonation of delay, Courts are more liberal with

reference to applications for setting aside the abatement, than

the other cases. It is also trite law that the word 'sufficient

cause' in Section 5 of the Act should be construed liberally, so

as to advance substantial justice, when the delay is not on

account of any dilatory tactics, want of bonafides, deliberate

inaction or negligence on the part of the concerned parties.

9. In Mithailal Dalsanagar Singh v. Annabai Devaram

Kini3, the Hon'ble Supreme Court in categorical terms observed

that the Courts have to adopt "a justice oriented approach

dictated by the upper most consideration that ordinarily a

litigant ought not to be denied an opportunity of having a 'lis'

determined on merits, unless, he has, by gross negligence,

deliberate inaction or something akin to misconduct, disentitle

himself from seeking the indulgence of the Court."

10. In N.Balakrishnan v. M.Krishna Murthy4, the Hon'ble

Supreme Court opined that in matters pertaining to

condonation of delay, the word 'sufficient cause' should be

construed liberally. The Hon'ble Court, inter alia, held 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

3 AIR 2003 SC 4244 4 1998 (7) SCC 123

NJS,J CRP No.1394 of 2021

the only criterion. Sometimes delay of the shortest range may

be un-condonable due to a want of acceptable explanation

whereas in certain other cases, delay of a very long range can

be condoned as the explanation thereof is satisfactory. 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".

11. The Hon'ble Supreme Court also observed that while

condoning the delay, the Court should also keep in mind the

consequent litigation expenses to be incurred by opposite party

and should compensate him accordingly.

12. A conspectus of the relevant Case Law in the context of

condonation of delay would go to show that the word 'sufficient

cause' should receive a liberal construction to meet the ends of

justice and the approach of the Courts should be pragmatic,

however with a caveat that the delay due to a deliberate act,

mala fide intention deserves no indulgence.

13. Apart from the above stated legal position, it is to be

noted that in the present case, the learned appellate Court also

relied on the decisions of the Hon'ble Supreme Court and

applying legal principles to the facts of the present case, has

taken a view that the delay in filing the application to set aside

NJS,J CRP No.1394 of 2021

the abatement of appeal deserves to be allowed. This Court

see no reason to take a different view nor the Order under

Revision suffers from any irregularity or perversity warranting

interference by this Court. The judgment of the Hon'ble

Division Bench in Kshitij Infraventures's case referred to

above was in respect of a case wherein an application filed to

condone the delay of 1691 days in preferring the appeal against

the judgment and decree of the trial Court was the subject

matter. The Hon'ble Division Bench, in the attending facts and

circumstances of the case, was not inclined to condone the

delay. The said decision in the considered opinion of this Court

is not applicable to the facts of the present case, as it relates to

application to condone the delay in setting aside the abatement

of appeal, but not delay in filing the appeal, where the

parameters for condonation are most stringent. The other

decision in Jampala Poornanda Venkateswara Prasad's

case referred to above is also not of much aid, as the learned

Judge in the attending facts and circumstances of the case

came to a conclusion that the petitioner therein was negligent,

designedly protracting the proceedings and therefore,

disentitled to claim discretionary relief under Section 5 of the

Act.

14. In the case on hand the learned Appellate Court, taking

into consideration, the matter in its entirety and by placing

reliance on the decisions of the Hon'ble Supreme Court,

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condoned the delay and this Court finds no reason to substitute

the well considered view of the learned Appellate Court.

15. In the aforesaid view of the matter, this Court is not

inclined to accept the submissions made by the learned counsel

for the petitioner and accordingly the same are rejected.

16. As a result, the Civil Revision Petition is dismissed. No

order as to costs.

Miscellaneous Petitions, if any, pending in this Civil Revision Petition shall stand closed.

__________________ NINALA JAYASURYA, J Date: 01.07.2022 BLV

NJS,J CRP No.1394 of 2021

HON'BLE SRI JUSTICE NINALA JAYASURYA

Civil Revision Petition No.1394 of 2021 Dated 07.2022

BLV