Andhra Pradesh High Court - Amravati

Miriyala Radha vs Madam Krishnaiah And Others on 18 September, 2024

APHC010191892022
                   IN THE HIGH COURT OF ANDHRA PRADESH
                                 AT AMARAVATI             [3311]
                          (Special Original Jurisdiction)


      WEDNESDAY, THE EIGHTEENTH DAY OF SEPTEMBER
           TWO THOUSAND AND TWENTY FOUR

                              PRESENT

       THE HONOURABLE MS JUSTICE B S BHANUMATHI

             CIVIL REVISION PETITION NO: 801/2022
                                &
            Civil Miscellaneous Appeal No.284 of 2022
Between:

Miriyala Radha                                     ...PETITIONER

                                AND

G Umadevi and Others                          ...RESPONDENT(S)

Counsel for the Petitioner:

  1. MAHADEVA KANTHRIGALA

Counsel for the Respondent(S):

  1. N PRAMOD



The Court made the following:
                                     2
                                                                        BSB, J
                                                       C.R.P.No.801 of 2022 &
                                                        C.M.A. No.284 of 2022

COMMON ORDER:

The challenge in these two cases is against the common order,

dated 01.12.2021, passed in I.A.Nos.155 and 156 of 2019 in

O.S.No.232 of 2017 on the file of the Court of the Additional Senior Civil

Judge, Madanapalle.

2. C.R.P.No.801 of 2022 is directed against the common order

insofar as it relates to I.A.No.155 of 2019, whereas C.M.A.No.284 of

2022 is directed against the order relating to I.A.No.156 of 2019.

3. More precisely, I.A.No.155 of 2019 is filed under Section 5 of the

Limitation Act to condone delay of 268 days in filing the petition to set

aside the ex parte decree and I.A.No.156 of 2019 is filed under Order IX

Rule 13 and section 151 CPC to set aside the ex parte decree, dated

05.03.2018, passed against the defendants and to provide them an

opportunity to prove their case.

4. Since the parties in both these matters are common and both the

interlocutory applications arise out of the same suit, both the revision

and the civil miscellaneous appeal are disposed of together.

5. Heard Sri Mahadeva Kanthrigala, learned counsel for the

petitioner/defendant No.1 and Sri N. Pramod, learned counsel for the

BSB, J C.R.P.No.801 of 2022 &

respondents/plaintiffs. The 3rd respondent is shown to be not necessary

party.

6. The facts, briefly stated, are as follows:

The plaintiffs filed the suit against the defendants for declaration

of right and title over the plaint schedule property, i.e., Flat No.401, 4 th

floor, Royal Enclave Apartment, Reddys Colony, Madanapalle. The 1st

defendant purchased the suit schedule property for residential purpose

from its owners, Machapalle Ranganathan and Kalaka Baba Sahib, for

Rs.8,52,000/- on 28.03.2013 and further spent Rs.10,00,000/- for its

development. Earlier, there were money transactions between the

husband of the 1st defendant and the husband of the 1st plaintiff and

taking undue advantage of the same, the husband of the 1st plaintiff

obtained signatures of the defendants on empty white papers and

fabricated a suit document and filed a false suit against the defendants.

The defendants, having come to know that the plaintiffs were trying to

knock away their property, filed a suit against the plaintiffs in

O.S.No.308 of 2017 on the file of the Court of the Additional Junior Civil

Judge, Madanapalle, for grant of permanent injunction and obtained ad

interim injunction against the plaintiffs. The defendants stayed at

Bangalore and when the 1st defendant contacted her counsel over

phone, she was informed that the suit in O.S.No.308 of 2017 was

BSB, J C.R.P.No.801 of 2022 &

pending. Though summons were received in the present suit, viz.,

O.S.No.232 of 2017, they kept quiet thinking that the summons received

by the 1st defendant pertain to the suit in O.S.No.308 of 2017 and taking

advantage of the situation, the plaintiffs obtained an ex parte decree on

05.03.2018. The defendants came to know that the plaintiffs are trying

to bring execution proceedings with a view to throw away the

defendants from the schedule property. Hence, these two interlocutory

applications were filed.

7. The plaintiffs filed counter in both the applications denying the

petition averments and stating that on 05.01.2015, the defendants sold

the plaint schedule property to the plaintiffs 1 and 2 for Rs.12,00,000/-

under a registered sale deed and delivered possession to them. On

their request, the plaintiffs allowed them to stay in the schedule property

on a monthly rent of Rs.5,000/- for a period of two years. There is

absolutely no reason for the plaintiffs to forge the signatures of the

defendants and create the registered sale deed, dated 05.01.2015.

The defendants have also handed over the original registered sale

deed, dated 28.03.2013, on the date of execution of the registered sale

deed itself. The plaintiffs sent a notice, dated 17.01.2017, to the

defendants to pay the arrears of rent, vacate and deliver possession of

the plaint schedule plot. The defendants did not vacate and sent reply

BSB, J C.R.P.No.801 of 2022 &

notice, dated 25.01.2017, with false allegations and without handing

over possession, the defendants filed O.S.No.308 of 2017 on the file of

the Court of I Additional Junior Civil Judge, Madanapalle, for permanent

injunction in respect of the schedule property. The defendants are

aware of the contents of the notice, dated 17.01.2017, reply notice

dated 25.01.2017, averments made in the written statement in

O.S.No.308 of 2017. They admitted execution of the registered sale

deed, dated 05.01.2015, and contended that it is only a nominal

document and no consideration was passed. However, in the

interlocutory applications, they have taken a totally different stand that

the signature in the sale deed was forged. The plaintiffs filed E.P 32 of

2018 in O.S.No.232 of 2017 for delivery of possession and delivery was

ordered and when the Field Assistant went to the schedule property, the

defendants refused to deliver possession and came up with the present

applications only in order to delay the execution proceedings. There

are absolutely no merits. The petitions are liable to be dismissed.

8. After hearing both parties, the trial Court, by the impugned

common order, dismissed both the applications, observing that the 1 st

defendant had knowledge of the suit till the ex parte decree is passed

and execution petition is filed and that there are no grounds to allow the

petitions.

BSB, J C.R.P.No.801 of 2022 &

9. The learned counsel for the petitioner submitted that the Court

below erred in dismissing the petitions without considering the age and

illiteracy of the petitioner in misunderstanding the summons received

and moreover, the delay is not long and justified in view of the another

suit filed by the petitioner and further that in view of the well supported

strong defence in favour of the petitioner, a fair chance ought to have

been given to the petitioner even by imposing costs, if necessary. In

support of his submissions, the learned counsel placed reliance on the

following decisions:

(i) Bandi Subbarayudu Vs. Madam Krishnaiah and others1, wherein

it was held at paragraph No.5 as follows:

"5. The trial Court placed reliance on the decision of this High Court in Dr. Damarla Savithri Vs. Kande Sreenivasulu [2015(1) ALT 576], wherein it was held that a Court has to observe three main tests while considering the applications for condonation of delay, as to i) whether a party has offered explanation which can be termed as reasonable or plausible,

ii) whether condonation of long delay will result in revival of a stale litigation causing undue hardship to the adversary party;

and iii) whether third party interests have been involved thereby unsettling their interest."

C.R.P.No.2786 of 2023, dated 05.07.2024

BSB, J C.R.P.No.801 of 2022 &

The learned counsel also placed reliance on the decisions in (ii) Podili

Madhu Babu Vs. Kandukuri Ramesh Babu 2 ; and, (iii) Boda

Venkataramanamma Vs. I. Satyavathamma3.

10. On the other hand, the learned counsel for the respondents

supported the order impugned and placed reliance on the following

decisions:

(i) In Sumathi Vs. T.Sreeramulu4, it was held at para nos.11, 12

and 13 as follows:

"11. In Balwant Singh (dead) v. Jagdish Singh and Ors. [(2010) 8 SCC 685] after referring to earlier case law, the Hon'ble Apex Court held at paragraphs 24 and 25 as under;

"We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation.

The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of

LAWS (APH)-2023-3-72

LAWS (APH)-2008-3-44

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BSB, J C.R.P.No.801 of 2022 &

one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."

12. In Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai [(2012) 5 SCC 157], the two-Judge Bench of the apex Court held as under:

"What needs to be emphasized is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statues, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the costs.

What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is

BSB, J C.R.P.No.801 of 2022 &

thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay."

Eventually, the Bench upon perusal of the application for condonation of delay and the affidavit on record came to hold that certain necessary facts were conspicuously silent and, accordingly, reversed the decision of the High Court which had condoned the delay of more than seven years."

13. In Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy [(2013) 12 SCC 649], the apex Court broadly culled out the following principles:

i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalize injustice but are obliged to remove injustice.

ii) The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.

iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief

BSB, J C.R.P.No.801 of 2022 &

because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

BSB, J C.R.P.No.801 of 2022 &

To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

d) The increasing tendency to perceive delay as a non-

serious matter and, hence, lackadaisical propensity can be exhibited in a non-challan manner requires to be curbed, of course, within legal parameters.

(ii) In Union of India Vs. Jahangir Byramji Jeejeebhoy 5, it was

held at paragraph Nos.22, 26 and 27 as under:

"22. Thus, it appears that the High Court made a reasonable suggestion to the Appellants that if the possession of the suit property is handed over to the Respondent, then probably the Court may consider restoring the Petition No. 2307 of 1993

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BSB, J C.R.P.No.801 of 2022 &

which came to be dismissed for default on 10.10.2006. The High Court noted as above that the learned Counsel appearing for the Appellants declined to hand over the possession of the suit property to the Respondent herein. We reiterated the very same suggestion before the learned Attorney General that if the Appellants are ready and willing to hand over the suit property to the Respondent, then, despite there being a long and inordinate delay, we may consider condoning the same and remanding the matter back to the High Court so that the High Court may be in a position to hear the matter on its own merits. However, the learned Attorney General, after taking instructions from his clients, regretted his inability to persuade the Appellants to hand over the possession of the suit property to the Respondent.

26. The length of the delay is a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the Appellants, it appears that they want to fix their own period of limitation for instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non-deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the plea for condonation of delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking

BSB, J C.R.P.No.801 of 2022 &

condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay.

27. We are of the view that the question of limitation is not merely a technical consideration. The Rules of limitation are based on the principles of sound public policy and principles of equity. We should not keep the 'Sword of Damocles' hanging over the head of the Respondent for indefinite period of time to be determined at the whims and fancies of the Appellants."

11. The reason for the absence of the petitioner before the trial Court

to defend the suit is that though she received summons, she thought

that those summons relate to the suit filed by her and it is only when

she came to know that the plaintiffs are trying to bring the execution

proceedings against her to throw her out of the house, the 1st defendant

was advised to file these petitions. According to her, she was staying

with her educated daughter at Bangalore. The reason stated does not

sound genuine, as the summons in one suit cannot be treated as

summons in her own suit to her. Moreover, she has legal advice. It is

not the length of the delay but sufficiency of the reason stated for the

delay that matters to condone the delay. When these reasons are

examined in the light of the above stated principles, it appears that they