Andhra Pradesh High Court - Amravati

Yerramneni Subba Mma vs Yerramneni Venkateswarlu 2 ... on 6 September, 2022

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      THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

           CIVIL REVISION PETITION No.170 of 2015

O R D E R:

This Civil Revision Petition is filed by the petitioner/plaintiff

under Section 115 of Civil Procedure Code (in short CPC) against the

Orders passed by the learned Principal Senior Civil Judge, Ongole, in

I.A.No.491 of 2012 in O.S.No.185 of 2008, dated 13.11.2014, wherein

and whereby the learned trial Judge dismissed the petition filed by the

petitioner/plaintiff under Section 5 of Limitation Act seeking to condone

the delay of 339 days in filing petition under Order IX Rule 9 of C.P.C.

2. The case of the petitioner in brief before the trial Court is that

she filed suit against the respondents/defendants for Partition of plaint

schedule properties into four equal shares and allot one such separate

share to her. She submits that previously suit was referred to Lok

Adalat but it was not settled and then sent back to the regular Court

and called on 25.03.2011 for trial but due to ill-health and old age, she

could not attend before the Court on that day and her counsel was

engaged in some other Court due to that there was no representation

on the date when suit was posted and then trial Court dismissed the

suit for default. It is also the contention of the petitioner that her

advocate wrote letters to her address but she was not residing in

Mangamuru village due to ill-health, she has been residing at her

brothers house in Venganaguntapalem village and she could not

contact her advocate to file petition to set aside dismissal order and

delay of 339 days occurred in filing the petition. She prays to allow the

petition.

3. The 1st respondent/D.1 filed counter denying averments in the

affidavit of the petitioner. It is the contention of R.1 that there are no

grounds to allow the petition and the petitioner is hale and healthy and

she is very well know about the proceedings and filed petition only to

drag on the proceedings. He prays to dismiss the petition.

4. The learned trial Judge after hearing both sides, dismissed the

petition filed by the petitioner on the ground that the petitioner unable

to explain inordinate delay in filing petition to set aside dismissal order

5. Aggrieved by the Orders passed by the executing Court, the

present Civil Revision Petition is filed by the petitioner/plaintiff stating

that Orders passed by the Court below is illegal, irregular and vitiated

by in correct exercise of jurisdiction vested in it. It is the contention of

the petitioner that trial Court erred in holding that she has not filed any

proof to support of her ill-health, change of her address and not

considered her age, due to her old age, she could not prove positively

her ill-health by producing documentary evidence. It is also the

contention of the revision petitioner that suit filed suit for seeking

partition of family properties and R.1 is no other than her son and she

has got right in the plaint schedule properties and if opportunity is not

given to her rights will be affected in immovable properties involved in

this suit. She prays to allow the revision petition.

6. Learned counsel for the revision petitioner mainly contended

that due to old aged ailments, the petitioner could not proceed with

the trial and as the petitioner was residing at her brothers house letters

addressed to her by counsel not received thereby she could not file

petition in time to set aside dismissal orders of the suit. She argued

that in view of nature of the suit and an opportunity has to be given to

the petitioner to proceed with trial as valuable rights of the parties

involved in immovable properties. She prays to allow the petition.

7. Learned counsel for R.1 mainly contended that no documentary

proof is filed to show that the petitioner was suffering from ill-health

and she was residing at her brothers house due to that she could not

receive intimation from her advocate. It is the contention of the

learned counsel for R.1 that nature of ill-health also not mentioned in

the affidavit of the petitioner, which petition is filed only to drag on the

proceedings. He prays to dismiss the petition.

8. Now the issue that emerges for consideration of this Court is:-

"Whether the Order under challenge is sustainable and tenable and whether the same warrants any interference of this court under Section 115 of C.P.C?"

POINT:-

9. Admittedly, the suit is filed by the petitioner seeking partition of

the plaint schedule immovable properties into four shares and allot one

such share to her. There is no dispute about relationship between the

parties as the petitioner is mother whereas R.1 to R.3 are her children.

The said suit contested by R.1 by filing written statement by raising

different pleas. Now, the contention of the petitioner is that she could

not proceed with the trial of the case as she was suffering from ill-

health and she was residing in brothers house, in some other village

due to that she could not receive letters addressed to her by her

advocate. It is pertinent to note that nature of ill-health and from

which date to which date the petitioner was suffering from ill-health

not specifically stated in the affidavit of the petitioner. It is also not

stated in her affidavit where she took medical treatment and she also

not filed any medical certificate to support her contention when she is

seeking relief to condone the delay of 339 days in filing the petition

under Order IX Rule 9 C.P.C.

10. The Hon'ble Apex Court in Pundlik Jalam Patil (D) by

Lrs.Vs.Executive Engineer Jalgaon Medium Project & Another.

in SLP (C) Nos.21011-21014/2007 in Civil Appeal Nos.6414/6417/2008,

Judgment, dated 03.11.2008 held at Para Nos.22, 23, which reads as

under:-

"22. Basically the laws of Limitation are founded on public policy. In Halsbury's Laws of England,4th Ed., Vol.28,p.266,para 605, the policy of the Limitation Acts is laid down as follows:

"The courts have expressed at least three different reasons supporting the existence of statutes of limitation, namely,(i) that long dormant claims have more of cruelty than justice in them, (ii) that a defendant might have lost the evidence to dispute the stated claim, (iii) that persons with good causes of actions should pursue them with reasonable diligence."

23. Statutes of limitation are sometimes described as `statutes of peace'. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. This court in Rajender Singh and others vs. Santa Singh and others [(1973) 2 SCC 705] has observed : "the object of law of Limitation is to prevent disturbance and deprivation of what

may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches". In Motichand vs. Munshi [(1969) 2 SCR 824], this court observed that this principle is based on the maxim "interest republicae ut sit finis litum, that is, the interest of the State requires that there should be end to litigation but at the same time law of Limitation are a means to ensuring private justice suppressing fraud and perjury, quickening diligence and preventing oppression.

It needs no restatement at our hands that the object for fixing time limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy."

11. In the present case, except vague averments in the affidavit of

the petitioner, no details are mentioned with regard to ill-health and

from which date to which date, she was residing at her brothers house.

The learned trial Judge rightly observed that the petitioner has not

explained the inordinate delay of 339 days in filing the petition to set

aside the dismissal order of suit for default. It is also observed by

lower Court that a mere mentioning in the affidavit filed by the

petitioner that she is sick and she changed her address without any

supporting material, is not a sufficient ground to condone the delay.

This Court did not find any illegality or irregularity in the Orders passed

by trial Court, which warrants interference by this Court under Section

115 C.P.C.