Maryalatirumal Reddy vs Aleti Jagga Reddy
2022 Latest Caselaw 291 Tel

             HON'BLE SRI JUSTICE P.NAVEEN RAO
                            AND
             HON'BLE SMT. JUSTICE P.SREE SUDHA

                       I.A.No.1 OF 2021
                            IN/AND
                  APPEAL SUIT No.100 OF 2021

                              JUDGMENT

(per Justice P.Sree Sudha)

1. I.A.No.1 of 2021 is filed by Maryala Tirumal Reddy, the plaintiff

in O.S.No.99 of 2011, seeking to condone the delay of 636 days in

preferring the appeal against the judgment and decree dated

19.03.2018 in O.S.No.99 of 2011 on the file of the learned

I Additional District Judge, Karimnagar.

2. In the affidavit filed in support of the application, the

petitioner-appellant would submit that he filed the above suit to

declare him as owner and possessor of the suit schedule property

and also for perpetual injunction restraining the defendants from

interfering with the suit schedule property. The trial Court dismissed

the suit on 19.03.2018 holding to the effect that the suit land is

situated in Sy.No.282 of Husnabad Village. The petitioner would

further submit that his counsel could not inform him about the

dismissal of the suit. Recently when he enquired his counsel about

the status of the suit, he said that it was dismissed on 19.03.2018

and further stated that certified copies obtained by him were

misplaced and as such, he subsequently secured them on

25.03.2021 and furnished to him. He would also submit that he was

doing business and resident of Hyderabad since 2016. The petitioner

was not in contact with his counsel on account of Covid Pandamic,

and therefore, there is a delay of 636 days in filing the appeal. He

would also submit that the said delay is neither wilful nor on account

of any mala fides, and thus prayed for condoning the said delay.

3. The petitioner-appellant also filed I.A.No.2 of 2021 in the

appeal seeking to receive the original endorsement dated 29.08.2018

issued by the Revenue Divisional Officer along with panchanama,

tippon, location map and Google Map as Ex.A.12. In the affidavit filed

in support of the application, the petitioner would submit that he

applied for survey of land in Sy.No.1191 situated at Husnabad. The

Deputy Inspector of Survey conducted survey of lands in Sy.No.1191

and submitted report to the Revenue Divisional Officer at Husbanad.

The Revenue Divisional Officer issued endorsement dated 29.08.2018

along with panchanama dated 28.08.2018, location map, tippon and

Google Map and that the endorsement along with enclosures are

necessary and proper documents for adjudication of dispute between

the parties.

4. In the counter-affidavit filed by the second and sixth

respondents herein would contend that the petitioner failed to

explain each day's delay of 636 days from 19.03.2018 to till filing of

the appeal and that the petitioner is well aware of the dismissal of the

suit O.S.No.99 of 2011 on 19.03.2018 and as such he asked them to

compromise the matter on payment of lump sum money and that it is

only when they did not agree, he preferred this appeal with abnormal

delay. They would further submit that it is the duty of each client to

enquire about the case when it is ripe for disposal and that the

petitioner cannot simply escape by blaming the counsel stating that

he did not inform or misplaced certified copies. They would also

contend that the petitioner has not stated when, where and at what

time he was informed and that the petitioner slept over the matter

from 19.03.2018 to 24.03.2021. They would also state that the

petitioner is a big real estate business man and he is well aware of

the dismissal of the suit, and therefore, he offered money and when

they refused, after losing hope to get compromise the matter, he

resorted to file this appeal by suppressing all the material facts. They

would also state that Covid lockdown was affected from 21.03.2020

but the petitioner did not explain each day's delay from 19.03.2018

to 20.03.2020 and from July, 2020 to March, 2021 i.e. after lifting

the lockdown. Now it is electronic era, everybody got cell phone, mail

etc. and therefore, lack of communication is totally false and

incorrect.

5. It is further stated that the petitioner is not at all owner and

possessor of the suit land, and as such, the trial Court clearly held

that the plaintiff failed to file single scrap of paper showing that he

purchased the property twelve years back and is in possession and

did not produce any evidence that the land is situated in

Sy.No.1191/B on south side of PWD Road. On 28.06.2014, the

Assistant Director submitted report-Ex.C2 sketch showing the suit

land falls in Sy.No.282. The Commissioner Report is also marked as

Ex.C1 which clearly shows that the suit land is very much situated in

Sy.No.282 and it is adjacent to PWD road. Mere marking of Exs.A10

and A11 cannot be said that the land is situated by the side of PWD

Road. A.S.No.760 of 2015 was withdrawn on 28.09.2016. Therein,

the plaintiff failed to establish that the suit land is in Sy.No.1191/B

on South of PWD Road. O.S.No.805 of 1984 was decreed on

19.11.1984 filed by the father of the respondents. Their father filed

Exs.B1 and B2. Exs.B3 to B5 with plan shows that Sy.No.282 is

adjacent to PWD Road supported by Exs.C1 and C2 and localised

that suit land is in Sy.No.282 but not in Sy.No.1191/B. The plaintiff

and Maryala Yella Reddy fabricated the registered sale deed dated

22.08.2011 while pending CRP No.5969 of 2010 and filed collusive

suit O.S.No.99 of 2011 on 29.08.2011, and therefore, requested to

dismiss the application filed for condoning the delay.

6. In the reply-affidavit filed by the petitioner while reiterating the

facts stated in the condone delay application further stated that he

never offered money for settlement of the case.

7. I.A.No.3 of 2021 in I.A.No.1 of 2021 in A.S.No.100 of 2021 filed

by the petitioner seeking to receive the additional affidavit in I.A.No.1

of 2021 and stated that his counsel applied fresh certified copy of

judgment and decree on 25.03.2021 and that due to Covid Pandamic

the Hon'ble Supreme Court exempted the period of limitation from

15.03.2020 to 14.03.2021 and that the present appeal was filed on

17.04.2021 and if the appeal time of 90 days is deducted, the delay

would come to 636 days and that miscalculation of days of delay is

inadvertent. He relied upon a judgment of the Hon'ble Apex Court in

IN RE COGNIZANCE FOR EXTENSION OF LIMITATION1.

8. O.S.No.99 of 2011 was filed by the petitioner-plaintiff seeking

the relief of declaration. The trial Court on appreciation of entire

evidence on record held that there is no dispute with regard to extent

of land owned and possessed by the respective parties. The only

dispute is whether the suit land is situated adjacent to PWD Road.

The burden is on the plaintiff to establish the said fact, but he failed

to substantiate the same and thus, he is not entitled for the relief of

M.A.No.665/2021 in SMW(C) No.3/2020 dated 27.04.2021

declaration based on his title. The report of Commissioner and

Assistant Director of Survey and Land Records would show that the

suit schedule property is situated in Sy.No.282 of Husnabad Village

and accordingly dismissed the suit on 19.03.2018.

9. The petitioner herein intended to mark the endorsement dated

29.08.2018 issued by the Revenue Divisional Officer. The said

endorsement was issued basing on the application of his father on

05.06.2018. He also enclosed panchnama, location map, tippon and

Google Map and requested to receive them as additional evidence.

But the said document was issued after dismissal of the suit.

Admittedly, in I.A.No.216 of 2012 an Advocate-Commissioner was

appointed to locate whether the suit schedule land is situated in

Sy,.No.282 of Husnabad Village or in Sy.No.1191/B with the help of

Surveyor and the said documents were marked as Exs.C1 and C2

and basing on the same along with the other evidence, the trial Court

held that the suit land is situated in Sy.No.282 but not in

Sy.No.1191/B, and therefore, the application vide I.A.No.2 of 2021

filed in this appeal to receive additional documents at this stage is

not proper and further he did not explain why he obtained the said

documents after dismissal of the suit. In the counter-affidavits filed

by the second and sixth respondents apart from opposing the delay,

they have given the details of several cases pending before various

Courts including offer of compromise on payment of lump sum

money. The petitioner herein is a well educated person and he has to

enquire about the status of the case. In this era of electronics, his

contention that he could not contact his counsel cannot be accepted.

10. Learned counsel for the petitioner relied upon the guidelines

issued by the Apex Court in respect of extension of limitation in

which it was held that in computing the period of limitation for any

suit, appeal, application or proceeding, the period from 15.03.2020

till 14.03.2021 shall stand excluded.

11. Even as per the calculation of the petitioner herein, which were

explained in the additional affidavit, yet after deducting the statutory

period of ninety days for preferring the appeal and also the period

excluded by the Hon'ble Apex Court during the Covid Pandamic,

there is much delay on the part of the petitioner, which remained

unexplained. He also relied upon the decision of the Hon'ble Apex

Court in N.BALAKRISHNAN V/s. M.KRISHNAMURTHY2 holding to

the effect that length of delay is no matter, acceptability of the

explanation is the only criterion. Sometimes delay of the shortest

range may be uncondonable due to a want of acceptable explanation

whereas in certain other cases, delay of a very long range can be

condoned as the explanation thereof is satisfactory. It is also argued

that rules of limitation are not meant to destroy the rights of parties,

but they are meant to see that parties do not resort to dilatory

tactics, but seek their remedy promptly.

12. Admittedly, in the case on hand, the petitioner is unsuccessful

before the trial Court and he preferred this appeal with an abnormal

delay and the reasons explained by him all through are neither

convincing nor satisfactory. The respondents herein clearly

contended that the petitioner is well aware of the result of the suit

and also proposed for compromise and when they refused, he came

(1998) 7 SCC 123

up with this petition with an abnormal delay. The conduct of the

petitioner clearly shows that he is dragging the proceedings. No

doubt, condonation of the delay is a matter of discretion of Court, but

the said discretion should be exercised sparingly with due care and

caution.

13. In the light of the foregoing reasons, we are of the opinion that

the petitioner miserably failed to furnish sufficient reasons for

condoning the abnormal delay of 636 days in preferring the appeal.

Accordingly, I.A.Nos.1 and 3 are devoid of merit and are dismissed.

I.A.No.2 shall also stand dismissed. Consequently, Appeal Suit

No.100 of 2021 stands dismissed. There shall be no order as to costs.

14. Miscellaneous Petitions, if any, pending in this appeal shall

also stand dismissed in the light of this order.

___________________ P.NAVEEN RAO, J

___________________ P.SREE SUDHA, J 28th JANUARY, 2022

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