Kolanti Das vs Pasupuleti Keerthi
2023 Latest Caselaw 2184 AP

       HON'BLE DR. JUSTICE K. MANMADHA RAO

 CIVIL REVISION PETITION Nos.1033 and 2594 of 2019


COMMON ORDER :

     As the issue involved in these civil revision petitions is

one and the same, these matters are taken up together for

disposal by this Common Order.


     2.    Heard Mr. M. Ramakanth, learned counsel

appearing for the petitioner and Mr. S. Syamsunder Rao,

learned counsel appearing for the respondents.

3. The petitioner herein is the 2nd plaintiff and the

respondents herein are the defendants in the suit in

O.S.No.342 of 2012, which was filed by the plaintiffs before

the V Additional Senior Civil Judge, Guntur (for short "the

trial Court"), for cancellation of the registered sale deed

bearing document No.776 of 2004 executed by Palaprolu

Subba Reddy in favour of the defendant and for declaration

that the plaintiffs are the absolute owners of the plaint

schedule property as it is their ancestral property and for

recovery of possession of the same from the defendant. The

same was decreed while defendant made as set ex parte.

Thereafter, the petitioner/defendant has preferred an

application under Section 5 of limitation Act to condone the

delay of 431 days in filing the petition to set aside the ex

parte decree vide I.A.No.918 of 2013 and the same was

allowed vide order dated 31.01.2019 on the ground that the

petitioner has made out sufficient cause to condone the

delay of 431 days in filing application to set aside ex parte

decree passed in the suit. Thereafter, the petitioner has also

preferred an application under Order 9 Rule 13 of CPC to

set aside the ex parte decree vide I.A.No.24 of 2019 and the

same was also allowed by order dated 17.04.2019 by the

trial Court. Aggrieved by the same, the petitioner/2nd

plaintiff has preferred the present Civil Revision Petitions.

4. During hearing, Sri Sai Narayana Rao, learned

counsel representing on behalf of learned counsel for the

petitioner submits that the petitioner/plaintiff filed the suit

for declaration and for cancellation of registered sale deed

dated 14.06.2004 and the same was decreed by the trial

Court. He further submits that the court below ought to

have seen that when the suit summons were sent for

appearance of the respondent No.1, the same were returned

with an endorsement that the said person left the house to

her in-laws place after marriage, and also ought to have

seen that the respondent No.1 in support of their delay

condone petition have not lead any evidence to show that on

the date of the disposal postal endorsement the respondent

No.1 was actually in the USA and not in Guntur. He further

submits that the Court below has failed to see that even for

Article 123 of the Limitation Act to apply respondent No.1 to

show that the date of her gaining knowledge of the suit and

which she left for the USA or when she came back to India,

she has not filed any evidence in the form of Passport

entries with regard to her entry into India and exit from

India and also she has not sufficiently proved her

whereabouts at the time of suit summons and also about

the address as shown in the sale deed.

5. On the other hand, learned counsel appearing for

the respondents submits that the respondent No.1 has filed

a petition attested true copies of the passport showing that

she is resident of Siatle Avenue, Columbus, USA and the

said fact was also not disputed before the court below.

Learned counsel for the respondents has relied upon a

decision of Hon'ble Supreme Court reported in Dr.

Yashwantrao Bhaskarrao Deshmukh versus Raghunath

Kisan Saindane1, wherein it was held that :

"The appellant filed an appeal before the High Court, which has been dismissed as barred by limitation. The High Court, while dismissing the application seeking condonation of delay in filing second appeal observed that sufficient cause for delay has not been established. The litigant, who is contesting the matter, cannot be negligent and it would be unfair to deprive the respondent, litigating for the last 17 years, of the valuable right that has accrued to him."

In another case reported in G. Adilakshmi vs

S.Anbalagan2, wherein the High Court of Madras held that :

At this juncture, I would like to observe that it is the duty of the transferee court to issue notice to both sides. However, the learned counsel for the plaintiff/respondent herein would submit that he received notice and entered appearance. But, the learned counsel for the defendant/revision petitioner herein would submit that no such notice was sent by the transferee court and the defendant was kept in the dark. Only on receipt of the E.P notice sent at the instance of the plaintiff, she came to know that an exparte decree was passed and whereupon, she approached her Advocate and filed an application under Order 9 Rule 13 of CPC to get set aside the exparte decree with an application to get the delay of 298 days condoned in filing the said application. I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court:

2021 SCC OnLine SC 914

CRP(NPD)Nos.2778 and 2811 of 2012, dt.30.7.2012

(i) 2012(4) Scale 152 [S.Ganesharaju (d) their Lrs and another vs. Narasamma (d) through their Lrs and others] and certain excerpts from it would run thus:

"15. The expression "sufficient cause" as appearing in Section 5 of the Indian Limitation Act, 1963, has to be given a liberal construction so as to advance substantial justice.

Rules of limitation are not meant to destroy or foreclose the right of parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly.

6. On a plain reading of the above citations, it is

observed that, as sufficient cause has not been established

for condonation by the appellant, the appeal was dismissed.

But in the present case, the respondent/defendant has

made out sufficient cause. Hence the facts of the above

cases are not applicable to the present facts of the case.

7. In a case of T. Bhoopal Reddy and another and

Smt KR. Laxmi Bai and another3, wherein the High Court

of Judicature : Andhra Pradesh at Hyderabad held that :

As stated earlier, we are quite conscious of the fact that the documents marked for purpose of determination of any interlocutory application cannot be treated as evidence per se but would enable the Court to prima facie come to a conclusion about the merits or demerits of the contentions advanced. For the reasons aforesaid, we disapprove the view taken by Mr. Justice

1998(1)A.P.L.J 161 (HC)

Somasekhara in the case referred to supra insofar as marking of the documents in the interlocutory applications.

In another case reported in Smt. R.Parijatham and

another and Smt. M. Kameshwari and others4, wherein

the High Court of Judicature at Hyderabad held that :

Before closing these cases, we feel the necessity of observing that instances have been coming to the notice of this Court, where some Subordinate Courts have not been marking the documents while disposing of the interlocutory applications. In this context, we are reminded of a Division Bench judgment of this Court in T.Bhoopal Reddy vs. K.R.Laxmi Bai [1998(1) ALT 292 (D.B.)], wherein it was observed that in order to come to a prima facie conclusion, both the trial Court and the Appellate Court should necessarily be able to locate the documents and know its contents to agree with either of the contentions; that nowhere it is envisaged that the case of the contesting parties can only be decided on the affidavits and not on any other material and that in the absence of any specific rule so far as marking of documents at the interlocutory stage is concerned, the Courts would not be justified in not giving any marking at all to such of the documents on which both sides would rely. Regrettably, despite this authoritative pronouncement of the Division Bench, some Courts have been ignoring the same and not marking the documents. The case on hand reflects one such instance. We, therefore, direct the High Court on administrative side to issue a Circular directing the Subordinate Courts to mark the documents filed by the parties to the interlocutory applications before deciding such applications.

Civil Miscellaneous Appeal Nos.527, 564 and 607 of 2017

8. On a perusal of the entire material available on

record, it is evident that the suit was filed on 22.02.2012

and was registered on 4.4.2012. The summons were

ordered to the respondent whose address was shown as

resident of Ashok Nagar, Guntur for appearance on

8.6.2012. But the same were returned unserved stating

that the respondent No.1 left the house after her marriage to

her in-laws place. Thereafter, on 23.7.2012, as the

publication was made, the court below called the defendant,

and as the said defendant absent, set her ex parte.

Thereafter after recording the evidence and marking

documentary evidence the court below decreed the suit by

judgment dated 27.7.2012.

9. In view of the foregoing discussion and the legal

position laid in the citations referred to above, this Court

observed that, while condoning the delay, the court should

not forget the opposite party altogether. It must be borne in

mind that he is a loser and he too would have incurred quite

large litigation expenses. A mere poring over and perusal of

those precedents would highlight and spot light the fact that

it is for the court to consider each and every case and decide

the lis. Therefore, this Court is of the considered view that

while setting aside the impugned orders in the present

revision petitions, the matters are remanded back to the

trial Court for consideration afresh and pass appropriate

reasoned orders in accordance with law by affording

reasonable opportunity to both parties.

10. Accordingly, the Civil Revision Petitions are

allowed. The impugned orders in both the revision petitions

are hereby set aside. Further, the trial Court is directed to

consider the applications of the petitioner/plaintiff afresh

and dispose of the same within a period of six (06) weeks

from the date of receipt of a copy of this order. There shall

be no order as to costs.

         As    a     sequel,   all   the   pending   miscellaneous

applications shall stand closed.

                                     ______________________________
                                      DR. K. MANMADHA RAO, J.
Date :     21-04-2023
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      HON'BLE DR. JUSTICE K. MANMADHA RAO

CIVIL REVISION PETITION Nos.1033 and 2594 of 2019

Date : 21 .04.2023

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