Pelluri Kanaka Durga vs Pagadala Udaya Laxmi
2022 Latest Caselaw 2594 AP

             THE HON'BLE Ms. JUSTICE B. S. BHANUMATHI


                 Civil Revision Petition No.622 of 2018


ORDER:

The unsuccessful petitioner/defendant filed this revision assailing

the order, dated 03.01.2018, passed by the learned Senior Civil Judge,

Bapatla, in I.A.No.682 of 2017 in O.S.No.171 of 2012 filed under

Section 5 of the Limitation Act, 1963, requesting to condone the delay

of 200 days in filing the application for setting aside the ex parte

decree and judgment, dated 26.08.2016, passed in the above said

suit.

2. Heard Sri Shaik Mohd. Ismail, learned counsel representing

Sri N. Naveen Kumar, learned counsel appearing for the revision

petitioner/defendant and Smt. V. Hima Bindu, learned counsel

representing Sri K.Chaitanya, learned counsel for the respondent/

plaintiff. The parties shall hereinafter be referred to as the plaintiff

and defendant for convenience and clarity.

3. The case of the revision petitioner/defendant in support of the

request for condonation of delay in filing the application seeking to set

aside the ex parte decree passed in the suit, in brief, is as follows:

The sole plaintiff filed the suit for recovery of possession in

respect of the suit schedule property bearing Door No.473 in an extent

of Ac.0.07 cents site and Madras Terrace Dhaba bearing Door No.

12-4-4, in Old Ward No.24 and new Ward No.26, locality No.12,

Anjaneya Agraharam, West Bapatla, Bapatla Municipality, Guntur

District. The defendant engaged a counsel on her behalf and got filed

BSB, J C.R.P.No.622 of 2018

a written statement. The counsel informed the defendant that he

would inform her at the time of trial. While so, all of a sudden, the

plaintiff, along with a Court Bailiff, came to the schedule property and

forcefully evicted her therefrom in spite of her raising protest and

objections. The defendant is suffering from various old age ailments

and her counsel did not respond to her calls. Later, she came to know

that an ex parte decree was passed in the suit on 26.08.2016.

Thereafter, the defendant engaged another counsel and obtained

certified copy of the judgment and decree. The trial Court observed as

follows: 'Though summons were served on the defendant and she

made her appearance by engaging counsel, as she failed to file written

statement within statutory period of 90 days. She was set ex parte.'

According to the defendant, she is suffering from diabetis, cardiac,

joint pains and other ailments. It is further stated that the counsel on

record did not inform her about the proceedings of the case though

she was in contact with him. She came to know of the ex parte

proceedings only in the month of December, 2016 when the plaintiff

and the court bailiff forcefully evicted her from the schedule property.

She tried to contact her counsel, but as he had not responded, she

engaged another advocate, obtained certified copies and filed petition

to set aside the ex parte decree and judgment. The defendant further

submits that if the ex parte decree and judgment is not set aside by

condoning the delay, she will be deprived of her valuable property

which is more than one crore rupee. Hence, the present petition is

filed to condone delay of 200 days in filing the petition to set aside the

ex parte decree and judgment, dated 26.08.2016 passed in

O.S.No.171 of 2012.

BSB, J C.R.P.No.622 of 2018

(b) The plaintiff filed counter before the trial Court stating that the

respondent/plaintiff purchased the suit schedule property for a

consideration of Rs.15,00,000/- from the petitioner/defendant under a

registered sale deed, dated 14.03.2011. The defendant requested the

plaintiff, after delivery of possession of the schedule property, to the

plaintiff to permit her to continue in the schedule property for some

moths. The plaintiff obliged her request and permitted her to stay in a

room for some time. Later, when she refused to vacate the schedule

property, the suit was filed. The defendant received the suit summons

and engaged an advocate and requested time for filing written

statement. But, without filing written statement, she got filed a

petition under Order 1 Rule 10 CPC by her stepson to implead him as

party to the suit and delayed the suit proceedings for two years

without filing written statement. Subsequently, after dismissal of the

said petition, again a petition in I.A.No.970 of 2014 was filed under

Order 9 Rule 7 and the suit proceedings were dragged for some more

time and the counsel for the petitioner ultimately reported no

instructions. The defendant did not respond to the notice issued by

the trial Court. The petition under Order 9 Rule 7 was dismissed.

Though the defendant was set ex parte on 18.01.2016, the trial Court

adjourned the matter for eight months. On 26.08.2016, the trial Court

passed decree and gave three months time to the JDr for evicting the

property. Even thereafter, the defendant did not take steps to vacate

the schedule property. An execution petition in E.P.No.76 of 2016 was

filed and the execution Court ordered eviction. In pursuance of the

said order, the Court Amin went to the schedule property and issued

notice to the JDr. The defendant vacated the schedule property

without any protest. Thereafter, the respondent removed the old

BSB, J C.R.P.No.622 of 2018

dilapidated house and is developing the suit schedule property by

spending huge amount to the knowledge of the petitioner who is

residing opposite to such property. Each day's delay has not been

explained. The defendant intentionally and deliberately avoided to

participate in the suit proceedings and now came up with the present

petition seeking to set aside the ex parte decree with false allegations.

She is blaming the advocate to gain sympathy taking advantage of her

age. She is hale and healthy. Hence, the petition is liable to be

dismissed.

4. The trial Court, by the impugned order, dismissed the petition

observing that the petitioner previously filed petition under Order 9

Rule 7 of CPC which was marked as Ex.R3, but the said petition was

dismissed as the Advocate reported no instructions from the petitioner

and that the petitioner never made an attempt to explain as to why

she did not respond when notice was served in the petition under

Order 9 Rule 7 of CPC. The trial Court further observed that filing of

petition under Order 1 Rule 10 of CPC by the step son of the

petitioner, which is not in dispute, shows that the petitioner has every

knowledge about the stage of the suit, but she intentionally did not

attend before the Court. Thus, the trial Court finally held that except

explaining the facts of the case, the petitioner did not try to explain

the reasons for day to day delay, and therefore, there are no reasons

to condone the delay of 200 days and dismissed the petition.

Hence, this revision by the petitioner/defendant.

5. Now, the point for determination is:

Whether sufficient cause is shown for condonation of delay? And, if so, whether the delay can be condoned?

BSB, J C.R.P.No.622 of 2018

6. POINT:

6(a) It is settled law that the length of delay is not the criterion, but

sufficiency of the cause of the delay is the criterion to condone delay

or not. To fortify the same, it is pertinent to refer to the decision in

N. Balakrishnan v. M. Krishna Murthy1, relied on by the revision

petitioner wherein at paragraph Nos.9, 11 and 12, it is observed as

follows:

"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 such finding, much less in regional 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.

10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice.

Time limit fixed for approaching the court in different

(1998) 7 Supreme Court Cases 123

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situations is not because on the expiry of such time a bad cause would transform into a good cause.

11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

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, [AIR 1969 SC 575] and State of West Bengal v. The Administrator, Howrah Municipality. [AIR 1972 SC 749]"

BSB, J C.R.P.No.622 of 2018

6(b) What is 'sufficient cause' has been elaborated by the Supreme

Court in the decision in The State of West Bengal v. The

Administrator, Howrah Municipality2, which has been relied on by

the learned counsel for the revision petitioner, and at paragraph

No.26, it was held as follows:

"26. The legal position when a question arises under Section 5 of the Limitation Act is fairly well-settled. It is not possible to lay down precisely as to what facts or matters would constitute "sufficient cause" under Section 5 of the Limitation Act. But it may be safely stated that the delay in filing an appeal should not have been for reasons which indicate the party's negligence in not taking necessary steps, which he could have or should have taken. Here again, what would be such necessary steps will again depend upon the circumstances of a particular case and each case will have to be decided by the courts on the facts and circumstances of the case. Any observation of an illustrative circumstance or fact, will only tend to be a curb on the free exercise of the judicial mind by the Court in determining whether the facts and circumstances of a particular case amount to "sufficient cause" or not. It is needless to emphasize that courts have to use their judicial discretion in the matter soundly in the interest of justice."

6(c) Learned counsel for the revision petitioner further placed reliance

on the decision in K.P.Natarajan and Another v. Muthalammal

and others3. In the cited decision, there was a delay of 682 days in

filing petition to set aside the ex parte decree for specific performance.

Since 'sufficient cause' for the delay is to be examined in the light of

the facts and circumstances established in each case, the decision

(1972) 1 Supreme Court Cases 366

2021 SCC ON Line SC 467

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cannot strengthen the case of the revision petitioner herein. However,

this decision is relied on by the learned counsel for the petitioner to

satisfy the Court that even after delivery of the suit schedule property,

upon executing the ex parte decree, the delay was condoned, as in the

present case also, the respondent/plaintiff has taken a plea that

delivery was already effected by executing the decree in a suit for

recovery of possession.

7. The petitioner approached the Court seeking condonation of

delay as if she had come to know about the ex parte decree when the

plaintiff came to the schedule property since her advocate did not

inform her about the trial after filing written statement. Whereas, the

respondent in its counter and the trial Court in its order have

mentioned undisputed facts regarding many stages of the suit of which

the petitioner was well aware and was given ample opportunity to

contest the suit. She suppressed all these facts and projected her

case in simple form, without referring to initially being set ex parte,

filing petition under Order 1 Rule 10 CPC by her step son, receiving

notice from Court on reporting no instructions by her counsel etc. It is

not necessary to repeat all those details as already stated in the

preceding discussion. Yet, the petitioner has slept over her rights and

allowed the proceedings in the suit to continue. Even after the Court

Bailiff visited on 24.12.2016, the petitioner approached the Court to

file necessary application on 25.04.2017 and claims to have so many

health issues without any iota of evidence. Thus, this Court does not

see any strength in the contention of the revision petitioner that she

could establish 'sufficient cause' to condone delay.

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8. For the foregoing reasons, this Court finds that the impugned

order does not suffer from any illegality or irregularity.

9. Accordingly, the Civil Revision Petition is dismissed.

There shall be no order as to costs.

Pending miscellaneous petitions, if any, in this revision shall

stand dismissed.

____________________ B. S. BHANUMATHI, J

22-06-2022 RAR