THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CIVIL REVISION PETITION No.2800 of 2019
ORDER:
The defendant before the learned trial Court filed this
revision under Section 115 C.P.C. seeking to set aside the order
dated 16.08.2019 of learned Principal District Judge, West
Godavari, Eluru in I.A.No.1852 of 2018 in A.S.S.R.No.5126 of
2018. The respondent herein is the plaintiff before the trial
Court and respondent in I.A.No.1852 of 2018 before the 1st
appellate Court namely learned Principal District Judge, West
Godavari, Eluru.
2. O.S.No.415 of 2008 was tried and decreed in favour of the
plaintiff by learned I Additional Junior Civil Judge, Eluru. The
relief granted was a mandatory injunction whereunder the
defendant was directed to remove certain structures and was
also directed to handover possession of 2 square yards of site to
the plaintiff. There was also a relief of permanent injunction
granted in favour of the plaintiff. The judgment was passed by
the learned I Additional Junior Civil Judge, Eluru on
08.05.2015. Subsequently, alleging non-compliance with
decree directions, the plaintiff as D.Hr. filed E.P.No.42 of 2016
and the said E.P. was filed on 19.01.2016. It was thereafter the
defendant in the suit though of filing an appeal and in the 2 Dr. VRKS, J C.R.P.No.2800 of 2019
process he found there was delay of 931 days and therefore, he
moved I.A.No.1852 of 2018 under Section 5 of the Limitation
Act seeking for condonation of that delay and enable him to
prefer the first appeal. In the sworn affidavit, the defendant
stated that the cause of delay in preferring the appeal was that
there was an original encroacher of the suit schedule property
and the wife of that original encroacher approached the
defendant and his family members and requested time to
handover possession of the property and there was a common
understanding and the matter was reduced in writing. It was in
those circumstances, the defendant could not prefer his first
appeal within time. Then allegations are also made against the
plaintiff stating that he is only a name lender and he did not
cooperate with the original encroacher and made some other
allegations. It is in those facts and circumstances, he sought
for condonation of 931 days delay. One would see the plaintiff,
who is respondent in I.A.No.1852 of 2018, did not file a counter
and was set ex parte. Thereafter, the learned Principal District
Judge, West Godavari, Eluru on considering the material on
record and after citing principles of law for condonation of delay
stated that attitude of the petitioner clearly showed negligence
in prosecuting the proceedings and liberal construction of 3 Dr. VRKS, J C.R.P.No.2800 of 2019
Section 5 of the Limitation Act is possible in appropriate
circumstances but not in a case of the present nature and
recording that the cause shown was neither a valid cause nor a
sufficient cause, dismissed that petition. Aggrieved by that, this
revision is filed stating that the impugned order is incorrect
since in those proceedings the opposite party did not even put
up contest. It is further stated that the lower Court failed to see
that it is this revision petitioner, who was deceived by the
respondent/plaintiff since plaintiff offered compromise and that
prevented the revision petitioner from filing first appeal before
the trial Court. Order is erroneous and against law. For these
reasons, he sought for setting aside of the impugned order.
3. The plaintiff before the learned trial Court who is
respondent herein filed a counter affidavit narrating the history
of the Case. Substance of this counter is that all that is pleaded
in the revision is completely incorrect and false. It is stated that
as a D.Hr. plaintiff filed execution petition and E.P. was pending
since 19.01.2016 and the defendant as J.Dr. put up his
appearance through his lawyer on 26.07.2016 and filed a
counter on 22.11.2016. Thereafter executing Court commenced
enquiry and D.Hr. gave evidence on 30.03.2017 and initially the
J.Dr. failed to cross-examine and subsequently came up with a 4 Dr. VRKS, J C.R.P.No.2800 of 2019
petition to reopen and the executing Court allowed it and then
D.Hr. was cross-examined on 21.11.2017. Then the matter was
posted for evidence on J.Dr. side and J.Dr. failed to adduce
evidence and at that time the executing Court posted the
execution petition for orders on 29.11.2017. It was since then
J.Dr. was filing one or the other petitions. That this revision
petitioner having participated in the execution proceedings since
26.07.2016 now decided to file first appeal on frivolous grounds
and all that is to drag on the proceedings. That the D.Hr. is
aged 75 years and has been in the litigation for 15 years for his
legitimate rights over 2 square yards of site. For these reasons,
respondent/plaintiff seeks for dismissal of the revision.
4. During the course of hearing, learned counsel for revision
petitioner submits that the first appeal is a matter of right and
allowing first appeal to be preferred would not cause any harm
to anyone and the view of the lower Court is incorrect and
sought for upsetting the order.
5. Learned counsel for respondent stated that the lower
Court properly considered the facts on record and found that
the cause shown was not sufficient and not valid and then cited
a judgment of the Madras High Court in Lakshmi v. 5
Dr. VRKS, J C.R.P.No.2800 of 2019
Gunasekaran (Law Finder # 1685977) and sought for dismissal
of the revision.
6. Therefore, the point that falls for consideration is:
"Was there sufficient cause to condone 931 days delay but
the lower Court was unable to exercise jurisdiction judiciously?
7. Point:
First appeal in civil matters is certainly a matter of right.
However, such a right is a creature of statute. Now the statute
also says that an appeal should be preferred within a prescribed
time. It further granted an opportunity to a litigant that in the
event of failure to reach the appellate Court within time, if the
appellant is able to show sufficient cause in terms of Section 5
of the Limitation Act, 1963 and if the Court is convinced of bona
fides of such a petition, then the litigant could be permitted to
have his appeal received and entertained. The undisputed facts
on record would show that the decree of the trial Court was on
08.05.2015, the defendant, who lost the case before the trial
Court, was entitled to move an appeal. Had he moved the appeal
within the prescribed time, no issue would have arisen but he
did not do it. He waited to have one year completed and then
the second year completed and the third year completed in half 6 Dr. VRKS, J C.R.P.No.2800 of 2019
and after consuming 931 days he wanted to prefer the appeal.
He was expected to explain the cause of such delay. The
affidavit in I.A.No.1852 of 2018 does not make any reference to
any legal proceedings that took place before the trial Court with
reference to any execution petitions etc. That shows that the
revision petitioner was not sincere in prosecuting the litigation
and wantonly concealed certain material aspects from the
consideration of a judicial forum. Be that as it may. The main
cause of delay explained in the petition filed before the lower
Court shows that there were talks between the defendant and a
third party and defendant thought that matter would be settled.
Therefore, he did not file appeal. The affidavit is completely
silent as to who is that third party and what is his/her name
and when did the talks take place. The affidavit speaks about a
document reduced into writing and that document was never
filed before the lower Court or this Court. Thus, the first cause
shown is totally vague. Moreover, an understanding between a
party to the litigation and a third party after a decree is
something that can never be considered as a sufficient cause for
a litigant to prefer an appeal. The affidavit also shows about
absence of rights for the plaintiff etc. That is a matter that need
not be considered since the trial Court decided that aspect of 7 Dr. VRKS, J C.R.P.No.2800 of 2019
the matter. What was not there in that affidavit is recorded as
one of the grounds in this revision stating that the
respondent/plaintiff deceived the revision petitioner in the name
of compromise. Despite best efforts one could not see such
assumption in the affidavit of the party filed before the lower
Court. Thus, the conclusions reached by the learned Principal
District Judge, West Godavari, Eluru that neither valid nor
sufficient cause could be found by her from the record is
something that is to be certified as perfect conclusion in the
given facts and circumstances. The conclusions of the lower
Court are based only on facts and are certainly in accordance
with law. In the ruling cited by the learned counsel for
respondent, it is stated that a litigant should not be left with a
Damocles' sword hanging over his head indefinitely. The
undisputed fact is that this very revision petitioner participated
in the execution proceedings for more than a year would by
itself indicate the dishonesty of the revision petitioner in
concealing it in the sworn affidavit. It is not the case of the
revision petitioner that the execution petition was not
maintainable because of post decretal settlement among parties.
However, revision petitioner to protract the proceedings seems
to have been adopting one or other method with one or other 8 Dr. VRKS, J C.R.P.No.2800 of 2019
frivolous cause and thereby successfully stalling the execution
proceedings. The impugned order is meritorious and revision
lacks any merit. Therefore, point is answered against the
revision petitioner.
8. In the result, this Civil Revision Petition is dismissed with
costs, confirming the order dated 16.08.2019 in I.A.No.1852 of
2018 in A.S.S.R.No.5126 of 2018 on the file of learned Principal
District Judge, West Godavari, Eluru.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 11.10.2022 Ivd 9 Dr. VRKS, J C.R.P.No.2800 of 2019
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CIVIL REVISION PETITION No.2800 of 2019
Date: 11.10.2022
Ivd
