S Subhani, Khammam Dist vs Shaik Dawood, Krishna Dist 11 ...
2023 Latest Caselaw 4718 AP

         HON'BLE DR. JUSTICE K. MANMADHA RAO

         CIVIL REVISION PETITION No.1693 of 2016

ORDER :

This Civil Revision Petition has been filed against the

order dated 26.10.2015 passed in I.A.No.9 of 2014 in O.S

No.1190 of 2006 on the file of II Additional Senior Civil

Judge, FAC :V Additional Senior Civil Judge (FTC),

Vijayawada.

2. The petitioner herein is the plaintiff and the

respondents are the defendants in O.S.No.1190 of 2006 filed

on the file of V Additional Senior Civil Judge, Vijayawada (for

short "the trial Court") for declaration and the same was

dismissed for default vide judgment dated 21.12.2011. The

present impugned I.A No.1190 of 2014 was filed under

Section 5 of Limitation Act to condone the delay of 383 days

in filing the petition to restore O.S No.1190 of 2006.

3. Heard Sri S.M. Subhani, learned counsel appearing

for the petitioner and Sri Subhan S.M., learned counsel

appearing for the respondents.

4. Learned counsel for the petitioner submits that the

order passed by the trial Court is erroneous, contrary to law

and all probabilities of the case. He further submits that

the trial Court failed to see that the petitioner has given

sufficient reasons for delay in filing set aside ex parte decree

dated 21.12.2011 by specifically contending that he was

suffering with viral fever at Hyderabad during that time, as

such he is unable to appear and paid costs of Rs.100/. He

further submits that the trial Court erroneously found that

there was no proper explanation for the delay of 383 days in

filing the delay petition under Section 5 of Limitation Act

and dismissed the same on that ground alone without even

considering the reasons explaining the petition. He further

submits that the trial Court erroneously kept the matter

pending for about 3 years though the petition to condone

the delay has been filed on 21.12.2012, the same was

dismissed on 26.10.2015. Aggrieved by the same, the

present civil revision petition came to be filed.

5. To support his contentions, learned counsel for the

petitioner has placed reliance on the judgment of Hon'ble

Supreme Court reported in Perumon Bhagvathy

Devaswom, Versus Bhargavi Amma (Dead) By Lrs and

others1, wherein it was held that :

The principles applicable in considering applications for setting aside abatement may thus be summarized as follows :

(i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words `sufficient cause' in section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the appellant.

(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.

(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.

(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects.

(v) Want of `diligence' or `inaction' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.

(2008) 8 Supreme Court Cases 321

6. He also relied upon a judgment of this Court in

Pinjari Khasim versus Chanda Saheb2, wherein it was held

that:

Ordinarily, the litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible adjudication is done on merits. Though the suit is of the year 2012, still the same is pending and if the said application is not considered, the rights of the petitioner will be affected.

7. Per contra, learned counsel for the respondents

submits that the trial Court has rightly dismissed the

petition. He submits that the version of the petitioner that

he is suffering from viral fever and could not appear before

the Court and the matter is posted for cross examination is

not correct and the petitioner has not explained sufficient

reason to condone the delay of 383 days in filing the

impugned application and hence prayed to dismiss the

revision petition.

8. On a perusal of the material available on record, it

is observed that the suit in O.S No.1190 of 2006 was filed

for declaration of the Gift Deeds pertaining to the year 2006

as null and void and also for partition of the suit schedule

property. After giving several adjournments and by

2023 SCC OnLine AP 698

imposing condition at last as the petitioner did not comply

the condition and did not turn up before the trial Court and

hence the suit was dismissed for default vide judgment

dated 21.12.2011. Later, the petitioner has filed the present

impugned I.A. simply stating that on the date when the

matter was dismissed for default i.e., on 21.12.2011, he

suffered with viral fever and could not appear before the

Court. But this Court is inclined to consider the same by

imposing some costs.

9. Ordinarily, the litigation should not be terminated

by default, either of the plaintiff or the defendant. The cause

of justice does require that as far as possible adjudication is

done on merits. No doubt the petitioner has not explained

sufficient reason to condone the delay. However, this Court

should have considered the same to meet the ends of

justice, by imposing some costs.

10. Accordingly, the Civil Revision Petition is allowed.

The order dated 26.10.2015 passed in I.A.No.9 of 2014 in

O.S No.1190 of 2006 on the file of II Additional Senior Civil

Judge, FAC :V Additional Senior Civil Judge (FTC),

Vijayawada is hereby set aside. Further, the petitioner is

directed to pay costs of Rs.2,000/- (Rupees Two thousand

only) to the credit of O.S.No.1190 of 2006 on the file of the

trial Court.

11. Since the suit pertains to the year 2006, the trial

Court is directed to dispose of the same as expeditiously as

possible, preferably within a period of six (06) months from

the date of receipt of a copy of this order.

12. As a sequel, all the pending miscellaneous

applications shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date :     06 -10-2023
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      HON'BLE DR. JUSTICE K. MANMADHA RAO




      CIVIL REVISION PETITION No.1693 of 2016




                 Date :   6 .10.2023




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