Boragam Sumalatha vs Ganagalla Yerrayya
2022 Latest Caselaw 7049 AP

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


              Civil Revision Petition No.1041 of 2021

ORDER:

The unsuccessful petitioner/defendant filed this revision,

under Article 227 of the Constitution of India, assailing the order,

dated 02.01.2020, passed by the learned XII Additional District &

Sessions Judge, Visakhapatnam, at Gajuwaka, in I.A.No.1114 of

2016 in O.S.No.4 of 2016 filed under Section 5 of the Limitation Act,

1963, requesting to condone the delay of 916 days in filing the

application for setting aside the ex parte decree and judgment,

dated 07.12.2016, passed in the above said suit.

2. Heard Sri Jada Sravan Kumar, learned counsel appearing for

the revision petitioner/defendant and Sri E.Sambasiva Pratap,

learned counsel appearing for the respondent/ plaintiff. The parties

shall hereinafter be referred to as 'plaintiff' and 'defendant'.

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 plaintiff filed suit for recovery of an amount of

Rs.17,18,000/- being the principal and interest due on a promissory

note, dated 18.11.2012, with subsequent interest and for costs.

BSB, J C.R.P.No.1041 of 2021 The defendant is working as a Teacher, MPP School, Pedagaru,

Hukupeta Mandal. She has no acquaintance with the plaintiff at any

point of time. She did not receive any amount and never executed

any promissory note in favour of the plaintiff. She received

summons from the court and she engaged an advocate at Gajuwaka

to contest the suit. However, she could not meet her counsel for

filing written statement in time. Her counsel also did not represent

the matter properly by seeking adjournment for filing written

statement. Thus, the trial Court set her ex parte and by judgment,

dated 07.12.2016, an ex parte decree and judgment came to be

passed.

(b) The petitioner came to know about the ex parte decree

passed in the suit when she received summons in E.P.No.14 of 2017

on 16.04.2019 which was filed for attachment of her monthly

salary. She could not file petition to set aside the ex parte decree

within time. There is a delay of (916) days in filing the petition to

set aside the ex parte decree & judgment, dated 07.12.2016. As

she has been residing in a remote village in an agency area and that

as she does not know the legal procedure, such a long delay had

occasioned. Hence, the present petition under Section 5 of the

Limitation Act was filed to condone delay of (916) days in filing

petition to set aside the ex parte decree and judgment, dated

07.12.2016.

BSB, J C.R.P.No.1041 of 2021

4. The plaintiff filed counter denying the averments made by the

defendant and contending that the defendant has not assigned

proper reasons for condoning the delay. The defendant suppressed

the material facts. The petition is filed to drag on the proceedings.

There are no bona fides. The petitioner/defendant has not

approached the court with clean hands and filed this petition only

with a view to harass the respondent/plaintiff and to delay the

disposal of E.P.No.14 of 2017. The petition is not maintainable and

is liable to be dismissed with exemplary costs.

5. The trial Court, by the order impugned in this revision,

refused to condone the delay of (916) days and accordingly,

dismissed the petition observing that the reasons stated by the

petitioner are not sufficient to allow the petition.

6. The aggrieved defendant preferred this revision. It is mainly

contended on behalf of the revision petitioner that the defendant

should have been given an opportunity to present her case and the

trial Court failed to appreciate the legal principle of 'audi alteram

partem' and straightaway dismissed the petition without providing

an opportunity to contest the matter.

7. 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.1041 of 2021

8. POINT:

(a) It is settled principle of 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.

(b) In the present case, it is the specific case of the revision

petitioner that the delay occurred as she could not meet her counsel

for filing written statement in time and as her counsel did not

represent her for seeking adjournment to file written statement and

further she had never been informed of the case status and

therefore, she came to know about the ex parte decree only on

receipt of notice in the execution petition. Even after setting the

petitioner ex parte, for not filing written statement, there would be

some more time for the defendant to place evidence and thereafter,

for the Court to pass judgment. Therefore, the defendant, having

ample time and opportunity, has not pursued her case vigilantly to

know about the status. She claims that she has no legal mind and

does not know the procedure of the Court and that she is residing in

a remote village in an agency area. Even then, illiterate persons or

persons living in village and remote areas are diligently pursuing

matters before the Courts. For such a long period of about three

years, the indolence of the petitioner in not even contacting her

BSB, J C.R.P.No.1041 of 2021 counsel to know about the status of the case does not show any

'sufficient cause' for condonation of delay.

(c) Learned counsel for the revision petitioner submitted that the

petition may be allowed by condoning the delay to give one more

opportunity to contest the matter on merits by imposing some

terms for deposit of a part of decretal amount for allowing the

petition.

9. Admittedly, major part of the suit claim has been recovered in

E.P.No.14 of 2017 by way of attachment of salary. In spite of

continuous deduction of her salary for payment towards decretal

debt, she has not even pursued this revision petition diligently to

get it disposed of shortly after its filing and allowed the matter in

execution to continue. Viewed from any angle, there appears

neither 'sufficient reason' for condoning the delay nor any reason to

adopt a lenient approach in favour of the revision petitioner.

9. As such, 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

15-09-2022 RAR