J.Ramanand vs The State Of Telangana
2021 Latest Caselaw 1329 Tel

        HE HON'BLE SRI JUSTICE T.AMARNATH GOUD

                 WRIT PETITION No.3138 of 2021
ORDER:

1 Aggrieved by the order dated 05.01.2021 passed in I.A.No.61

of 2020 in O.P.No.21 of 2007 on the file of the Cooperative

Tribunal, Hyderabad, whereby the Tribunal dismissed the I.A. filed

by the petitioner to condone delay of 321 days in filing an

application to set aside the docket order dated 03.5.2019 in the

O.P, the petitioner filed the present Writ Petition.

2 The facts germane for consideration in this Writ Petition, in

nutshell, are as follows:

3 The petitioner is an allottee and member of the 4th

respondent Society and that since the allotment and membership

of the petitioner were at stake, he filed the O.P.No.21 of 2007

before the Tribunal seeking certain reliefs. During the course of

proceedings, on 27.8.2010 the petitioner filed his chief affidavit.

The case of the petitioner was that as there was no regular

presiding officer for the Tribunal for a very long time, the matter

were being adjourned from time to time and as such there was no

representation on his behalf on 03.5.2019 as the junior for his

counsel failed to note down the date of adjournment. Moreover,

as against an order of dismissal passed I.A.No.387 of 2007, which

was filed by the 4th respondent herein, the 4th respondent preferred

W.P.No.6841 of 2008 before the High Court and that the 4th

respondent used to take adjournments on the pretext of pendency

of the said Writ Petition. In that process the O.P. was dismissed

for default on 03.5.2019. There was no negligence on his part but

for the reasons stated above. On coming to know that the O.P. was

dismissed for default, he filed the I.A.No.61 of 2020 seeking to

condone delay of 321 days in filing an application under Order 9

Rule 9 CPC to set aside the docket order dated 03.5.2019. He

further stated that the Tribunal held that the delay is inordinate

and beyond 10 years. The same is factually incorrect and liable to

be set aside.

4 The 4th respondent herein contested the said application.

The Tribunal on appreciating the material available on record, by

the impugned order, dismissed the said I.A.No.61 of 2020. Hence

the present Writ Petition.

5 There is no representation on behalf of the unofficial

respondents though served. The 4th respondent herein filed

counter and supported the order of the Tribunal. The 4th

respondent contended that the actual delay is 522 days but not

321 days, as pleaded by the petitioner. He has not denied the fact

that the Tribunal erred in holding the delay as 10 years and above.

He further submitted that the petitioner has not explained the day

to day delay properly and there are no bona fides on the part of the

petitioner and hence the Writ Petition is liable to be dismissed. The

4th respondent relied on the following judgments:

1) Town Municipal Council Athani v. Presiding Officer,

Labour Court, Hubli1, 2) Nityanand M. Joshi v. LIC of India2, 3)

Smt. Sushila Devi v. Ramanandan Prasad3, 4) Sakuru v. Tanaji4

1 AIR 1969 (SC) 1335 2 AIR 1970 (SC) 209 3 AIR 1976 (SC) 177 4 AIR 1985 (SC) 1279

and 5) G.Narasimha Rao v. Regional Joint Director of School

Education, Warangal5.

6 In matters of this nature, though the delay should not be

condoned mechanically or automatically, considering the facts and

circumstances of the case, delay can be condoned if sufficient

cause is shown. Since the phrase "sufficient cause" is not

specifically defined under the statute, its consideration may vary

from case to case relying upon the facts, circumstances and

dispute involved in the matter. In the present case, the dispute is

pertaining to right of the petitioner with regard to his ownership on

the plot. In general, if there is sufficient reason to condone the

delay, delay can be condoned. Dismissing the cases

on technical grounds of limitation would not, in any way, advance

the interests of justice but admittedly, result in failure of

substantial justice.

7 Now let me deal with the case on hand in touchstone with

the above legal principle.

8 Admittedly, the subject land in Banjara Hills, Hyderabad is a

valuable land. If the O.P. is not decided on merits, the petitioner

would be put to irreparable loss and hardship. But for the

technical reasons, the valuable right of the petitioner cannot be

denied. Therefore, it cannot be said that the petitioner does not

have a good case.

9 As could be seen from the record, it is pertinent to note that

the 4th respondent herein filed I.A.No.387 of 2007 in the O.P.

5 2005 (2) ALT 469 DB

praying the Tribunal to frame a preliminary issue that the Tribunal

has no jurisdiction to entertain the O.P. and that petition was

dismissed. Aggrieved by the said order, the 4th respondent

preferred W.P.No.6841 of 2008 before the High Court and on the

pretext of the pendency of the above Writ Petition, the 4th

respondent used to take adjournments before the Tribunal. So

there is justification on the part of the petitioner to plead that the

matter is being adjourned from time to time at the behest of the 4th

respondent and it could also be a reason to believe that the

petitioner could not note down the date of adjournment, of course,

may be due to inadvertence.

10 It is not in dispute that usually the post of the presiding

officer of the Tribunal is vacant. Additional charge is given to the

Chief Judge, City Civil Court, Hyderabad for some time and for

some times to the Chairman, presiding over the Sales Tax

Appellate Tribunal. The City Civil Court and the Sales Tax

Appellate Tribunal are far away from the premises of the

Cooperative Tribunal.

11 The case of the 4th respondent is that there is no provision in

the A.P. Mutually Aided Cooperative Societies Act regarding

applicability of the Limitation Act. Simply because there is no

provision in the statute, the litigant cannot be driven to his own

fate without there being any legal avenues. In the absence of a

specific provision in the Act to condone the delay, automatically

Section 5 of the Limitation Act can be applied. Even if the delay is

condoned, no prejudice would be caused to the respondent.

12 The Tribunal has held that the delay is inordinate and it is

more than 10 years. In fact it is not. The Tribunal erred in

recording the same. It is without application of mind. The said

fact has not been denied by the counsel for the 4th respondent.

13 Having regard to the facts and circumstances of the case it

cannot be said that the entire burden lies on the petitioner only.

The petitioner has a sufficient reason to plead excuse. The

principle laid down in the judgments relied on the learned counsel

for the 4th respondent, in the present set of facts, have no

application to the case on hand.

14 For the above reasons, this court is of the firm view that this

is a fit case to exercise the extra ordinary jurisdiction under Article

226 of the Constitution of India.

15 In the result, the Writ Petition is allowed, setting aside the

order dated 05.01.2021 passed in I.A.No.61 of 2020 in O.P.No.21

of 2007 on the file of the Cooperative Tribunal, Hyderabad.

Consequently I.A.No.61 of 2020 stands allowed. No order as to

costs. Miscellaneous petitions if any pending in this Writ Petition

shall stand closed.

__________________________ T. AMARNATH GOUD, J.

Date:23-04-2021 Kvsn