Such Long Delay Was Not ... vs The Hon'Ble Justice Dr. ...
2023 Latest Caselaw 3346 AP

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

         CIVIL REVISION PETITION No.118 of 2020

ORDER:

This Civil Revision Petition filed under article 227 of the

Constitution of India assails the order in I.A.No.366 of 2019 of

learned Principal District Judge, Nellore.

2. The facts leading to the present Revision Petition are as

mentioned below:

A woman and her two sons together filed O.S.No.14 of

2009 before learned Senior Civil Judge, Kovur of Nellore District

seeking partition of plaint schedule properties and grant

separate possession of 1/3rd share of plaint schedule property

and for costs and such other reliefs. The said suit was laid

against 5 defendants and on contest issues were settled and

suit was tried and by a judgment dated 28.11.2017, the learned

trial Court dismissed the suit. While answering the contested

facts, the learned trial Court observed that plaint schedule

properties were not available for partition and they were

personal properties of defendant No.1.

3. The plaintiffs who lost the suit by the judgment dated

28.11.2017 intended to prefer an appeal and the time available

for preferring the appeal was up to 28.11.2017. By that outer

Dr. VRKS, J C.R.P.No.118 of 2020

date they did not prefer the appeal. However long thereafter,

those three plaintiffs filed I.A.No.366 of 2019 under Section 5 of

Limitation Act and under Section 151 of CPC before learned

Principal District Judge, Nellore seeking to condone delay in

presenting the appeal. That petition was filed by all the three

plaintiffs and in support of the petition, a sworn affidavit of the

first plaintiff was filed. Defendants/respondents filed their

counter. After due inquiry, the learned Principal District Judge,

Nellore dismissed the petition. It is that order which is assailed

in the present revision petition. In the impugned order, the

learned Principal District Judge mentioned that while the delay

is more than 400 days, the affidavit and the petition mentioned

the delay as 83 days. In the opinion of that Court, the said

petition seeking condonation of delay was prepared with such a

negligence. It is further recorded that the condonation petition

was filed on the premise that the first plaintiff is aged and has

been sick and was unable to meet her counsel to have the

appeal presented and that occasioned the delay but the fact

remained that her sons who are also the plaintiffs and

petitioners in I.A.No.366 of 2019 were capable of perusing their

legal remedies in presenting the appeal but they did not do so.

Dr. VRKS, J C.R.P.No.118 of 2020

Such long delay was not satisfactorily explained and therefore,

the learned first appellate Court refused to condone the delay.

4. In the present Civil Revision Petition, the learned counsel

for petitioners K.Pallavi appearing for them argued that it was

poor health condition of first revision petitioner that caused the

delay and the nature of litigation is one for partition and an

appeal could be considered as continuation of suit and in such

event, the learned Principal District Judge, ought to have

adopted liberal approach in condoning the delay and such

liberal approach is the law laid down by the Hon'ble

Supreme Court of India in Collector Land

Acquisition, Anantnag V. Mst.Katiji1.

1. "Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."

2. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

3. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when

AIR 1987 SC 1353

Dr. VRKS, J C.R.P.No.118 of 2020

delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

4. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay. Every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

5. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

6. There is no presumption that delay is occasioned deliberately, or an account of culpable negligence, or an account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

7. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

5. In the said case it was a delay of four days and the appeal

was presented by the State and the appeal raised very

important questions regarding principles of evaluation in a land

acquisition case. It was in the above referred facts and situation

their Lordships laid down the earlier referred principles. Based

on these principles, the order impugned is sought to be set

aside.

Dr. VRKS, J C.R.P.No.118 of 2020

6. Despite notices none entered appearance for respondents.

7. Having considered the submissions of learned counsel for

revision petitioners and having considered the material placed

before this Court.

The point that falls for consideration is:

"Whether the impugned order occasioned failure of

justice requiring interference?"

POINT:-

The purpose of prescribing periods of limitation is to see

that the dispute would not be raised beyond certain time limits

so that people could govern themselves peacefully exercising

their own rights over the properties. Section 5 of Limitation Act

requires the petitioners to show sufficient cause that caused the

delay. The delay in this case is 444 days as could be seen from

the material papers that are filed. There is a copy of I.A.No.366

of 2019 and in it at the bottom of the page, below the prayer

portion, list of documents are mentioned indicating the medical

certificate of the first plaintiff showing that she took treatment

in a hospital for her sickness from 14.05.2018 to 05.01.2019.

The said I.A.No.366 of 2019 was filed on 18.04.2019. As stated

Dr. VRKS, J C.R.P.No.118 of 2020

earlier, the out limit for presenting the appeal papers was

28.11.2017. Thus from 28.11.2017 till the first plaintiff became

sick on 14.05.2018, she shall be presumed to be healthy in that

long period of time but plaintiff did not choose to file the appeal.

Though her sickness was cured and she re-gained health on

05.01.2019, the appeal was not preferred. The petition under

Section 5 of the Limitation Act was filed three and half months

thereafter on 18.04.2019. During that period also the first

plaintiff was healthy. The affidavit of the first plaintiff filed in

support of I.A.No.366 of 2019 did not choose to explain in any

acceptable terms as to why the appeal could not be preferred up

to 14.05.2018 on which the date she became sick. Her affidavit

did not say when she became sick, when she regained her

health and where she obtained treatment. It simply says that

she has been on bed for a long time and was unable to move

because of her ill health. Her own affidavit shows that at a

belated stage, she had applied for certified copies of trial Court

judgment and decree and at belated stage she contacted her

advocate. It does not indicate when she obtained certified copies

of judgment and decree and when she contacted her advocate to

present the appeal. Thus, except making bald and vague

Dr. VRKS, J C.R.P.No.118 of 2020

statements nothing relevant and acceptable to a Court of law

finds place in her affidavit. All these aspects are critically

commented in the counter filed by defendants/respondents in

I.A.No.366 of 2019. One could see that her application mentions

83 days delay. In the impugned order learned Principal District

Judge mentions that during the course of arguments that

learned counsel for plaintiffs admitted that the delay was more

than 400 days. Thus, on facts learned Principal District Judge

is right when he recorded the observation that without any care

and caution, the application was presented for his

consideration. The other aspect of the matter is about first

plaintiff's two sons. It is undisputed that they are hale and

healthy. They are also parties in I.A.No.366 of 2019 and they

along with their mother presented the appeal papers before the

first appellate Court. Nothing prevented those two sons to

pursue the litigation by contacting their counsel within the

prescribed time or soon thereafter. They did not do and no

cause is mentioned for their failure. It is that aspect of the

matter that clinched with the learned Principal District Judge in

finding no reason to condone the delay. He dismissed the

petition. Learned counsel for revision petitioners submit that

Dr. VRKS, J C.R.P.No.118 of 2020

the two sons are not taking care of her and therefore they did

not take enthusiasm in preferring the appeal. This is a matter

that is not part of the record and that submission does not

stand to scrutiny since those two sons are also seeking

condonation of delay. To enable them to prefer the first appeal,

it has been the law that satisfactory explanation of delay is a

sine-qua-non before a Court liberally considers and condones

the delay. In the cited ruling also, that has been laid down. As a

principle if no sufficient cause is shown in a petition filed under

Section 5 of the Limitation Act, and if it is seen that petition

suffers from laches and negligence Courts cannot condone the

delay on any equitable grounds as laid down by the Hon'ble

Supreme Court of India in Amalendu Kumar Bera V. The

State of West Bengal2.

8. In the above referred circumstances, this Court finds that

the learned Principal District Judge appropriately considered

the matter before him and properly analysed the facts and

properly applied the law and this Court finds no reason to revise

it.

(2013) 4 SCC 52

Dr. VRKS, J C.R.P.No.118 of 2020

Point is answered against the petitioners.

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

There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 11.07.2023 DVS

Dr. VRKS, J C.R.P.No.118 of 2020

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

CIVIL REVISION PETITION No.118 of 2020

Date: 11.07.2023

DVS