G Sriramulu vs K.Venkateshwar And Another
2022 Latest Caselaw 4095 Tel

           HON'BLE Smt. JUSTICE P.SREE SUDHA

         CIVIL REVISION PETITION No.5547 of 2017

                            ORDER

1. The revision petition is directed against the order dated

08.09.2017 passed in I.A.No.151 of 2017 in I.A.No.353 of 2008

in O.S.No.1311 of 1999 on the file of the learned I Senior Civil

Judge, City Civil Court, Hyderabad.

2. Mr.M.Amarnath-plaintiff-second respondent herein filed

suit in O.S.No.1311 of 1999 against Mr.G.Sriramulu-petitioner-

defendant herein seeking specific performance of the agreement

of sale and a direction to the defendant to execute the registered

sale deed in favour of the plaintiff in respect of the suit schedule

property after receiving the balance sale consideration. The

petitioner herein filed an application in I.A.No.151 of 2017 in

I.A.No.353 of 2008 under Section 5 of the Limitation Act, 1963

seeking to condone the delay of 188 days in filing a petition to

set aside the order dated 12.12.2008 passed in I.A.No.353 of

2008 stating that due to medical and financial problems he

along with his family were struggling for existence, he left

Hyderabad in search of employment and as such he was unable

to defend and give instructions to his counsel and thus an

ex parte decree was passed and in his absence his wife through

his General Power of Attorney got settled all the cases except the

present one. On 29.09.2011 he filed an application to set aside

the ex parte decree dated 26.11.2005 along with delay petition

through his GPA holder vide I.A.No.1740 of 2011 in

O.S.No.1311 of 1999. As he could not pay the fees, he was

compelled to take on objection vakalat from Mr.B.Shankar,

Advocate, and engaged another counsel. Later in E.P.No.71 of

2010 Mr.B.Shankar, Advocate, was engaged on 11.08.2016 after

improving his financial status and came to know that the deed

of assignment was executed on 24.09.2007 in favour of first

respondent herein vide order in I.A.No.363 of 2008 in

O.S.No.1311 of 1999. The petitioner herein would assert that as

per Order 21 Rule 16 CPC, notice to the judgment debtor is

mandatory. He obtained certified copies of the assignment deed,

notice, memo and docket orders passed in I.A.No.353 of 2008 in

the suit on 23.08.2016. As he was working in marketing line

and was not in Hyderabad, he was unable to give instructions to

file set aside petition against the orders dated 12.12.2008

passed in I.A.No.353 of 2008 immediately. He extracted the

docket proceedings and stated that on 18.07.2008 notice was

issued to the counsel on record i.e., Mr.K.Jagathpal Reddy,

Advocate, and he filed a memo dated 23.11.2005 stating that he

reported no instructions from the defendant. But the trial Court

observed that notice was given to the counsel on record to the

effect that 'Memo filed by the Defendant Counsel reported no

instruction from the Defendant, hence for the Judgment call on

25.11.2005' and made an endorsement to send notice to the

party, it was not served upon him and as such he requested the

Court to condone the delay.

3. In a counter filed by the first respondent, he stated that

I.A.No.1740 of 2011 was filed to condone the delay of 2124 days

to set aside the decree, but it was dismissed on 18.04.2016 with

costs of Rs.2003/-. Against which the petitioner herein filed

C.R.P.No.3263 of 2016 before this Court and it was dismissed

on 20.09.2016. He would further assert that the present

application is filed only to thwart the due process of law and it

amounts to estoppel and also barred as constructive res

judicata under Section 11 CPC. I.A.No.1740 of 2011 is filed in

September 2011 and thus the petitioner has knowledge of the

order passed on 21.09.2011 in I.A.No.353 of 2008 and as such

calculating the period from 11.08.2016 is not maintainable and

he has not explained the reasons for the inordinate delay of

1800 days in filing the present application. He would also assert

that the petitioner herein is in the habit of changing the

Advocates. He initially he engaged Mr.Jagathpal Reddy,

Advocate, to prosecute the suit and then he appointed one

Mr.B.Shankar, Advocate, for filing I.A.No.1740 of 2011 and

thereafter taken no objection from him and engaged Mr.Shaik

Iqbal Pahsa, Advocate, to contest the application. After

dismissal of the application, the petitioner once again taken no

objection from Mr.Shaik Iqbal Pasha, Advocate, and engaged

Mr.B.Shankar in filing the present application. The petitioner

appointed his son and wife as power of attorney holders to

represent certain other matters. He would also submit that the

allegation made by the petitioner that creation of assignment

deed is false, whereas it is a registered one and is a public

document available for general public. The petitioner has to

explain the inordinate delay in filing the present application

from 2011 to 2016 i.e. more than five years, instead, he simply

stated that he went to USA and could not follow up the matter.

4. The petitioner also filed rejoinder to the said counter on

06.06.2017.

5. The trial Court after considering the arguments of both

the counsel at length, dismissed the application by observing

that at one point of time the petitioner stated that he was

struggling financial difficulties and in another point he went to

USA and the petitioner cannot approbate and reprobate at the

same time. The trial Court has extracted the details of the

Advocates changed by the petitioner during the pendency of the

proceedings.

6. It was observed that O.S.No.1311 of 1999 was filed by the

plaintiff against the petitioner herein for specific performance of

agreement of sale dated 27.01.1993 in respect of the mulgi

bearing No.4-5-61 admeasuring 420 square feet situated at

Koti, Hyderabad, which was decreed on 26.11.2005 with a

direction to deposit Rs.50,000/- being the balance sale

consideration within one month and the defendant is directed to

execute registered sale deed, but the decree holder assigned the

decree in favour of the first respondent herein who filed

I.A.No.353 of 2008 and it was allowed on 12.12.2008. As the

petitioner herein filed I.A.No.1740 of 2011 for condoning the

delay of 2124 of days to set aside the ex parte decree dated

26.11.2005 passed in O.S.No.1311 of 1999, he ought to have

calculated the limitation period from 12.12.2008 but not from

23.08.2016. The affidavit filed in I.A.No.1740 of 2011 was sworn

by the wife of the petitioner herein and it was argued by the

same counsel. The trial Court observed that the petitioner

herein had wrongly calculated the delay and committed fraud

on the Court. Apart from that he filed false affidavit stating that

he has knowledge about the order passed by the Court only

from 23.08.2016, though he is aware of filing of I.A.No.1740 of

2011 through his wife and he has not explained the delay of

more than five years. I.A.No.1740 of 2011 was dismissed on

18.04.2016 against which C.R.P.No.3263 of 2016 was filed and

it was also dismissed on 20.09.2016. The trial Court in its order

clearly observed that the petitioner wrongly calculated the delay

of 188 days and thus the petition itself is misconceived and

accordingly dismissed with costs of Rs.1000/-. Aggrieved by the

same, the present revision is preferred.

7. Heard the learned counsel appearing for the petitioner

and the learned counsel appearing for respondents.

8. Learned counsel for the revision petitioner would contend

that notice was not given to the petitioner herein but wrongly

mentioned that notice given and posted for counter. He would

further contented that when notice was served on his counsel,

he reported no instruction and instructed him to issue notice to

the party, but even then it was not served upon the petitioner

and therefore, he requested the Court to set aside the order

under challenge.

9. The principles applicable to an application for

condonation of delay are as follows:

(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 legalise 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 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 encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

(viii) There is a distinction between inordinate delay and 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 where the second calls for a liberal delineation.

(ix) The conduct, behavior and attitude or 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.

(xiv) An application for condonation of delay should be drafted with careful concern and not in a haphazard 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.

(xv) 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.

(xvi) 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.

(xvii) The increasing tendency to perceive delay as a non-

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

10. As per the record, O.S.No.3628 of 1995 is filed by one

K.Krishna Murthy against the petitioner herein for recovery of

an amount of Rs.34,400/- and it was decreed in favour of the

plaintiff on 13.07.1999. The petitioner herein has entered into a

compromise with the decree holder and to that effect memos

were filed in E.P.No.4 of 2011 in O.S.No.3628 of 1995, in

E.P.No.2 of 2011 O.S.No.3629 of 1995, in E.P.No.7 of 2011 in

O.S.No.3630 of 1995, in E.P.No.3 of 2011 in O.S.No.3631 of

1995, in E.P.No.121 of 2011 in O.S.No.324 of 2001 and in

E.P.No.6 of 2011 in O.S.No.3848 of 1995. Third party affidavit

of one Ms.Ashwini was also filed in E.P.No.71 of 2010 in which

she stated that when she contacted the petitioner and his wife

over phone, both the phones were switched off and on enquiry

she came to know that the petitioner is residing in USA and so

also in the docket order dated 20.07.2011 it was observed that

Mr.G.Shankar, brother of the sole judgment debtor, present in

person and represented that the judgment debtor is in USA and

the third party affidavit was also filed and as such the matter is

posted to 24.08.2011 for taking steps. I.A.No.1740 of 2011 was

filed by the wife of the petitioner stating to the effect that her

husband is in USA with their daughter and requested the Court

to condone the delay of 2124 days. Deed of Assignment dated

24.09.2007 was executed by Sri M.Amarnath against one

K.Venkateswar and he stated that he filed O.S.No.1311 of 1999

and obtained decree on 26.11.2005 and thereafter he obtained a

loan of Rs.3,00,000/- in the year 2000 and out of which a sum

of Rs.50,000/- was deposited. As he could not repay the

balance amount, he executed assignment deed in favour of the

assignee towards due discharge of hand loan of Rs.3,00,000/-.

Thereafter, as there were some mistakes crept in the

assignment deed, rectification deed was executed on

03.01.2017.

11. Coming to the facts of the case, the plaintiff filed suit for

specific performance against the petitioner herein and it was

decreed on 26.11.2005. Initially the petitioner herein filed

I.A.No.1740 of 2011 for condoning the delay of 2024 days to set

aside the ex parte order and when it was dismissed, the

petitioner herein filed I.A.No.353 of 2008 to condone the delay of

188 days by suppressing the orders of the Court in I.A.No.1740

of 2011. The conduct of the petitioner herein is to be

ascertained in view of the suit filed by plaintiff for recovery of

the amount and also in view of his compromise with the decree

holder in several execution petitions. The petitioner herein

himself stated that he was having financial problems and thus

he could not pay the fees to engage the counsel and as such he

could not contest the matter and he also changed several

Advocates during the pendency of the proceedings and even

during the pendency of the E.Ps. he was at USA and as such

notice was not served upon him properly and he represented the

matters by giving GPA to his wife and son. In this case he

mainly contended that though his counsel reported no

instructions, no notice was served upon him and though he is

not a party to the assignment deed. He intended to challenge

the said order by duly condoning the delay. It is for him to

explain the delay properly and in fact it is for him to calculate

the delay correctly. In the case on hand, the delay is not

properly calculated and not explained properly at any point of

time and as such I.A.No.1740 of 2011 was dismissed. For the

very same reasons, he filed again I.A.No.353 of 2008 for

condoning the delay of 188 days. The trial Court after

considering all the factors into consideration at length and also

the documents filed under Ex.P1 to P25 dismissed the

application. When a suit is filed against the petitioner, it is for

him to prosecute the same with due diligence, but he could not

pursue the same for the reasons best known to him. The Court

will not come to the rescue of the people who slept over the

matter during the pendency of the proceedings and approached

the Court at a belated point of time without there being any

sufficient reason. For the reasons best known to the petitioner,

he could not appear before the Court and though he engaged

several counsel on record they could not represent the matter

before the Court properly and finally came up with the delay

condonation petitions which were dismissed by duly considering

the reasons stated by both the parties.

12. There is no error apparent in the order under challenge

and it is not perverse and the scope of revision is limited.

Though petitioner stated that fraud was played upon him, he

has not established the same. The entire proceedings clearly

establish that the petitioner herein is negligent in pursuing the

litigation and in fact he wilfully avoided to contest the matter,

and as such he is not entitled for invoking a liberal approach in

condoning the delay.

13. To the objection raised by the learned counsel for the

petitioner that no notice was served upon the petitioner, a duty

is caste upon him to be available in person or through counsel

for receiving the notice sent by the Court when the matter is

pending before it, and when he failed to do so, he cannot blame

the Court and cannot take advantage of his own mistake and

agitate before the Court that no opportunity was given to him.

14. In the light of the above discussion, the Civil Revision

Petition is mischievous and it amounts to abuse of process of

law and is liable to be dismissed. Accordingly, the civil revision

petition is dismissed with costs of Rs.10,000/- payable to the

Member Secretary, Telangana Legal Services Authority within

one month from today.

15. Miscellaneous Petitions, if any, pending in this revision

shall also dismissed in the light of this final order.

____________________ P.SREE SUDHA, J.

10th AUGUST, 2022.

PGS