B.Ramanjaneyulu vs M Venkamma
2022 Latest Caselaw 7839 AP

        THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

          CIVIL REVISION PETITION No.3752 of 2019

ORDER:

This civil revision petition filed under Article 227 of the

Constitution of India questions the correctness of the order

dated 20.09.2019 of learned Principal Junior Civil Judge, Adoni

in I.A.No.197 of 2019 in O.S.No.122 of 2017.

2. By the impugned order, the learned trial Court refused to

condone the delay to file a petition to set aside the ex parte

decree suffered by the revision petitioner. The revision

petitioner was the defendant before the trial Court. The

respondent herein was the plaintiff before the learned trial

Court.

3. O.S.No.122 of 2017 was a suit filed for recovery of an

amount of Rs.1,66,050/- based on the foot of a promissory note

dated 09.07.2014. The defendant therein received suit

summons but did not appear and contest. He was set ex parte

on 14.06.2017. Thereafter, evidence in the suit commenced and

PW.1 gave evidence on 28.06.2017. Then the learned trial

Court passed a judgment and decree dated 04.07.2017. Thus,

there was ex parte decree passed against the defendant.

Dr. VRKS, J C.R.P.No.3752 of 2019

4. The defendant in the suit filed I.A.No.197 of 2019 under

Section 5 of the Limitation Act, 1963 seeking to condone the

delay of 110 days in filing a petition to set aside the ex parte

decree. The brief affidavit of the petitioner filed in support of

the said petition is extracted below:

"1. I am the defendant in the above suit and petitioner herein and I know the facts of the case. The plaintiffs have filed the above suit against me for recovery of the suit amount under the strength of pronote.

2. The Hon'ble Court was pleased to grant ex-parte decree against me on 04.07.2017 as I could not contest the suit.

3. I submit that as my wife health was not well I could not engage a counsel to contest the case. Recently I came to know about the passing of ex-parte decree in the above suit.

4. I further submit that now I was advised to set aside the ex-parte decree as I got good case to defend and therefore there is delay in filing this petition to set-aside the ex-parte decree dated 04.07.2017. If the delay is not condoned I would be put to great hardship."

5. The plaintiff in the suit filed a verified counter and denied

each and every allegation made in the petition and it is stated

that the allegations made were not supported by any material.

It further mentioned about initiation of execution proceedings

and the progress made therein and attributed gross negligence

Dr. VRKS, J C.R.P.No.3752 of 2019

on part of the petitioner and absence of bona fides. It is then

stated that the plaintiff in the suit is aged 80 years and only to

harass her, the present petition is filed. With those reasons,

she sought for dismissal of the petition.

6. Learned Principal Junior Civil Judge, Adoni enquired into

the matter and found that sufficient cause was not shown by

the petitioner/defendant and dismissed the petition.

7. In this revision, the defendant in the suit states that in

the suit, appeal and execution proceedings, he did not receive

notice and ex parte orders were passed and by playing fraud on

the Court, order of the dismissal of the petition was obtained

and it is erroneous, arbitrary, illegal and contrary to law. If

execution proceedings are allowed, it would cause irreparable

loss and hardship. For these reasons, he seeks to set aside the

impugned order.

8. Before issuance of notice to the respondent, learned

counsel for the revision petitioner submitted arguments.

9. Considering the material on record and the submissions

made by the learned counsel for revision petitioner, the point

that arises for consideration is:

Dr. VRKS, J C.R.P.No.3752 of 2019

"Whether the trial Court failed to exercise jurisdiction

judiciously though sufficient cause for condoning delay was

shown by the revision petitioner?

10. Point:

Counter filed by the respondent before the trial Court and

the order of the trial Court, which is impugned in this revision,

would show that subsequent to passing of the decree, the

plaintiff/D.Hr. filed E.P.No.100 of 2017 in O.S.No.122 of 2017

seeking for arrest and detention of the J.Dr. for his failure to

pay the decretal amount. J.Dr./defendant/the present revision

petitioner made his appearance and the executing Court

recorded the evidence on both sides and allowed the execution

petition and ordered for arrest of J.Dr./revision petitioner.

When the Court Amin went to effect the arrest of him, he

refused to submit himself and therefore, the Amin went back

and the D.Hr. filed an application for police aid. While the said

application for police aid was pending before the executing

Court, the defendant moved an application under Section 5 of

the Limitation Act leading to the impugned order of the learned

trial Court.

Dr. VRKS, J C.R.P.No.3752 of 2019

11. The order of the learned trial Court indicates that the

affidavit of the petitioner is too vague to be considered as it

failed to mention the nature of sickness suffered by his wife and

the period of her sickness and the treatment that she had taken

and it further shows that to substantiate about the alleged

sickness of the wife, the petitioner did not file any material

before it. It further indicates that this petitioner participated in

the execution proceedings and only when the matter came up to

the stage of police aid for his arrest, he has come up with this

petition to condone the delay for filing the petition to set aside

the ex parte decree. With this reasoning, it found that there was

no sufficient cause shown and therefore refused to condone the

delay. Thus, in a sense the order of the trial Court indicates full

participation of this revision petitioner during execution

proceedings and thus, there were no bona fides in moving the

application.

12. In this revision, the revision petitioner states that he did

not receive summons either in the suit or in the execution

proceedings and fraud was played on the Court. Now this

contention stands contrary to the very affidavit filed by this

revision petitioner before the learned trial Court. At para No.3

Dr. VRKS, J C.R.P.No.3752 of 2019

of his sworn affidavit, he mentioned that health of his wife was

not well and therefore, he could not engage a counsel to contest

the suit. Thus, the ground urged in the revision that summons

in the suit were not received is incorrect. Coming to execution

proceedings, the impugned order shows that he made his

appearance before the executing Court on receipt of notice and

thereafter, he put up his contest. The material papers filed

before this Court would also show certain counters filed by the

present revision petitioner before the executing Court as he was

a J.Dr. before the executing Court. Thus, the ground urged in

the revision that the J.Dr./revision petitioner did not receive

any notice from the executing Court is also incorrect. The

counter of the respondent and the impugned order of the trial

Court when categorically indicate about execution proceedings,

the affidavit filed by this revision petitioner has not made a

mention about any such proceedings. Thus, this revision

petitioner purposefully concealed material facts before the

Court. This revision petitioner failed to mention the nature of

the sickness of his wife and how that sickness effected his effort

to contact a lawyer to contest the suit. Further, the affidavit is

silent as to the date on which he came to know about the

Dr. VRKS, J C.R.P.No.3752 of 2019

ex parte decree that was passed. Learned trial Court properly

analyzed all the facts and stated that the petitioner failed to

show sufficient cause. Once the cause of delay is not properly

explained, the petition under Section 5 of the Limitation Act

cannot be allowed. When he was watching the execution

proceedings and then filed the petition to condone the delay,

such delay cannot be considered to be sufficient cause.

13. Learned counsel for the revision petitioner cited a

judgment in Ramesh v. Sadhasivamoorthy1. Learned counsel

submits that, that was a case where 1379 days delay was

condoned and in the case at hand it was only 110 days delay.

14. Having considered the ruling cited, it has to be stated that

the length of the delay by itself is no ground to refuse to

condone the delay and what has to be seen is whether the cause

of delay is properly explained and whether the explanation

amounted to furnishing sufficient cause. In the cited ruling, the

High Court of Madras essentially considered a proposition about

substantive contentions for the defendant in a suit and the

magnitude of the dispute in the suit as proper factors for

2018 Law Suit (Mad) 8430

Dr. VRKS, J C.R.P.No.3752 of 2019

consideration and in that context, it found the explanation

offered by the defendant/revision petitioner therein as sufficient

and condoned the delay and inflicted compensatory costs of

Rs.50,000/-. In the case at hand, the suit is based on a

promissory note of Rs.1,00,000/- and the revision petitioner

neither before the trial Court nor before this Court ever showed

his possible defence as against the claim in the plaint.

Therefore, the ruling cited having no resemblance on facts does

not lend assistance to the revision petitioner.

15. Having considered the entire material on record, it has to

be stated that the impugned order indicates proper appreciation

of the facts and in the opinion of the trial Court, the facts did

not show sufficient cause to condone the delay and since the

approach is according to legal reasoning and as per the law, this

Court sitting in a revision does not find anything to interfere

with it. Therefore, the point is answered against the revision

petitioner.

16. In the result, this Civil Revision Petition is dismissed

confirming the order dated 20.09.2019 in I.A.No.197 of 2019 in

O.S.No.122 of 2017 on the file of learned Principal Junior Civil

Judge, Adoni. There shall be no order as to costs.

Dr. VRKS, J C.R.P.No.3752 of 2019

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 14.10.2022 Ivd

Dr. VRKS, J C.R.P.No.3752 of 2019

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CIVIL REVISION PETITION No.3752 of 2019

Date: 14.10.2022

Ivd