Isanaka Mohan Reddy vs Mantena Soma Raju
2022 Latest Caselaw 3764 Tel

  THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU

                    C.R.P.No.1244 of 2022


ORDER:

The second petitioner in this revision petition is wife of

one I.Mohan Reddy, who is shown as first petitioner and

petitioner No.3 is son of petitioners No.1 and 2. The said

I.Mohan Reddy has filed a suit in O.S.No.74 of 2005 before

the XII Addl. District Judge, Ranga Reddy District against

M.Soma Raju (defendant in O.S.No.74 of 2005) for the relief

of specific performance of sale deed dated 08-04-2005. The

defendant resisted the claim, filed his written statement and

the trial Court framed issues and proceeded with the trial.

2. The said Mohan Reddy filed his evidence affidavit

on 22-10-2007. He was examined in further chief on

01-11-2007 and he got marked Exs.A1 to A3. The cross-

examination of PW.1 was deferred at the request of

defendant. The defendant has filed two petitions vide

I.A.No.38 of 2008 and I.A.No.39 of 2008. I.A.No.38 of 2008

was filed with a prayer to de-exhibit Ex.A1 and the trial Court

disposed the petition on merits on 17-03-2008 and allowed

the prayer of defendant, and the other petition vide I.A.No.39 SSRN,J

of 2008 was filed by the defendant with a prayer to defer the

cross-examination of PW.1 till the plaintiff pay the deficit

Court fee and stamp duty of Ex.A1. The said petition was

allowed and cross-examination of PW.1 was deferred.

3. It appears from the record that later the suit was

dismissed for default on 26-10-2009. Subsequently, the

petitioners herein have filed a petition before the trial Court

on 16-03-2022 in I.A.No.302 of 2021 under Section 5 of

Limitation Act and submitted that the plaintiff Mohan Reddy

died on 09-09-2012 and they were not aware of the said suit,

thereby, they could not take steps to bring the legal heirs on

to the record thereby, they sought for condoning the delay for

4162 days in filing petition to bring the suit to file. The trial

Court dismissed the petition on 16-03-2022.

4. Aggrieved by the dismissal of their petition in

I.A.No.302 of 2021, the petitioners herein have filed the

present revision. In the grounds of revision, the petitioners

have claimed that the trial Court failed to appreciate the

probability, proportionality and reasonableness of the case

thereby, came to an erroneous conclusion. The order of the

trial Court is vitiated by various irregularities and surmises

and not on any acceptable evidence on record. The petitioners SSRN,J

have claimed that the husband of petitioner No.2 filed suit for

specific performance. The Court below ought to have

considered the sale deed which is marked as Ex.A1 wherein,

the entire sale consideration was paid to the respondent vide

cheque dated 08-04-2005. The Court below ought to have

considered that the plaintiffs have paid Rs.3,05,140/- towards

stamp duty in view of orders in I.A.No.38 of 2008. The Court

below ought to have considered that time was granted for

cross-examination of PW.1 but the husband of the second

petitioner, who was suffering from health ailments, could not

prosecute the suit which resulted dismissal of the suit for

default. They have also claimed that Mohan Reddy used to

look after the suit proceedings during his life time. The

petitioners were not aware of the pendency of the suit. They

were in utter shock due to the death of Mohan Reddy. The

petitioners could not file restoration petition and they were

not in a position to take steps for bringing legal heirs of

Mohan Reddy which is neither intentional nor deliberate.

According to the petitioners, the delay of 4162 days for filing

restoration petition is not willful but due to the sufficient

cause. The petitioner have relied on the judgment of the

Hon'ble Apex Court in "N.Balakrishnan Vs. SSRN,J

M.Krishnamurthy,1 wherein the Hon'ble Apex Court was

pleased to observe that the law of limitation fixes a life span

for such legal remedy for the redressal of the legal injury so

suffered. Therefore, according to the petitioners, the trial

Court committed gross error in dismissing the application,

thereby, they sought for setting aside the order dated

16-03-2022.

5. The learned counsel for the petitioners has

submitted that soon after the death of plaintiff, the second

petitioner migrated to her native place i.e., Nellore along with

her son, the third petitioner herein and who was suffering

from mental ill health. She is not aware of her husband

purchasing suit schedule property, obtaining an agreement of

sale and about the suit filed by her husband. She came to

know about the suit very recently. She rushed to Hyderabad

and got the records verified, then only she came to know her

husband has paid the entire sale consideration and purchased

the suit schedule property. The learned counsel further

argued that the petitioner could not take appropriate steps as

they were not aware of the suit proceedings. If the petition is

not allowed, they would suffer irreparable loss thereby,

1988 (7) SCC 123 SSRN,J

sought for setting aside the order of the trial Court and for

permission to the petitioner to proceed with the suit.

6. The petition is filed under Section 5 of Limitation

Act. The petitioners are under obligation to explain each

day's delay to seek the relief of restoration. The petitioners

have filed the present application solely on the ground that

the third petitioner is suffering from ill health, and the second

petitioner was not aware of her husband purchasing the

property filing suit and as they migrated to Nellore soon after

the death of her husband Mohan Reddy.

7. A notice before the admission was directed and

the learned counsel for the petitioner filed a memo along with

track report from postal department to show that the

respondent/defendant was served with the notice. No body

represented the respondents before this Court.

8. In view of the above contentions, I have to see

whether the petitioners are able to explain the delay in a

proper way. As per the entire record placed before this Court,

it is very clear that the suit referred above was filed on the

basis of an agreement of sale supposed to have been

executed by the respondent/defendant.

SSRN,J

9. Now the point for consideration is :

Whether the petitioners are liable to explain the delay of 4162 days, if so, whether their request to condone inordinate delay be allowed ?

10. As per the plaint in O.S.No.74 of 2005, the

plaintiff Mohan Reddy specifically claimed that the defendant,

who was owner of Ac.07-05 gts of land in Chilkur Village

offered the property for sale and plaintiffs agreed to purchase

the same for Rs.26,52,500/-. The plaintiffs have claimed that

he has paid the entire sale consideration by way of a cheque

on the same day and he has obtained sale deed from the

defendant on a non-judicial stamp paper worth of Rs.100/-.

The plaintiff has claimed that the defendant executed alleged

un-registered sale deed on 08-04-2005 itself and affixed his

thumb impression. It was the further case of plaintiff that

when he was ready to obtain registered sale deed, the

defendant avoided the registration. Therefore, he filed the

suit and sought for specific performance.

11. The defendant made his appearance before the

trial Court, filed written statements, disputing all the plaint

averments including the alleged sale, receipt of entire sale

consideration, execution of unregistered sale deed, passing of SSRN,J

receipt etc., According to the statement, it was his specific

case that he never alienated the property to the plaintiff. He

was kidnapped by the plaintiff and his men. They forced him

to sign on some documents and he was brought to Hyderabad

on the early hours of 07-04-2005. Since he did not return to

the village till the morning, his village members made enquiry

and they lodged a complaint at police station, Palakol Rural on

08-04-2005. A case was registered against Vinod Reddy and

Paruchuri Suman since then they were absconding. It was

also alleged in the written statement that they abducted and

threatened him with knives and swords. He was made to sign

sale deed dated 08-04-2005 under the coercion and threat,

thereafter, taken to Syndicate Bank, Hyderabad where he was

forced to open an account in the Bank. He was made to sign

cheque book in the presence of the Bank Manager. Therefore,

at no point of time, he sold the property to the plaintiff and he

never received any consideration. The defendant has

categorically pleaded that plaintiffs are strangers to him.

12. The record further shows that on the basis of

complaint filed by the family members of defendant, a case

was registered and subsequently, the accused therein were

acquitted.

SSRN,J

13. According to the material averments of the plaint

and written statement, it was the case of plaintiff that he has

purchased an extent of Ac.07.05 gts by paying more than

26 Lakhs under an un-registered sale deed dated 08-04-2005.

According to the defendant, he did not receive any such

consideration, he was forced to sign on documents and forced

to open a Bank account and his signatures were obtained on

the cheque book. Whatever may be the allegations in the

plaint and written statement, it is the case of the plaintiff that

he purchased vast extent of more than 7 acres by paying

26 Lakhs to the owner of the property. In 2005, the

consideration of Rs.26 Lakhs and odd is not a small amount.

The claim of petitioner No.2 who is no other than wife of

plaintiff that she is not aware of her husband purchasing land

property, paying 26 Lakhs and odd is highly un-believable.

No prudent person would hide a purchase of landed property

from his wife because it involves funds of more than 26

Lakhs. Therefore, the contention of petitioner No.2 that she is

not aware of the purchase of land obtaining sale of agreement

is not believable. In addition to this, the record would show

that criminal case was registered alleging that the defendant

was abducted to obtain his signatures on some documents.

SSRN,J

14. As per the written statement, it is alleged that

soon after a complaint was filed about the kidnap of

respondent/defendant the said Mohan Reddy and others

absconded fearing arrest by police. In the evidence affidavit,

PW.1 i.e., Mohan Reddy has stated that the defendant got

registered a false complaint against him and others but the

case ended in acquittal vide judgment dated 17-10-2007.

Therefore, the claim of petitioners that they are not aware of

suit transaction is absurd. Since Mohan Reddy is shown in the

criminal case it may not escape the attention of his wife and it

is quite natural for the wife to enquire and know the details.

15. The petitioners could not file any record before

the Court that petitioner No.3 is suffering from mental ill

health and soon after the death of plaintiff, they migrated to

Nellore. They did not furnish any address where they are

staying for all these more than 4000 days. Therefore, the

contention of the petitioners that they are not aware of the

purchase of land and payment of Rs.26 Lakhs and odd

thereby, they could not file petition within time cannot be

accepted. It may be true that the defendant did not challenge

the petition filed by the petitioners before the trial Court and

he did not choose to appear before this Court. In the light of SSRN,J

what he has averred in the written statement, he might have

apprehended danger to his life. It is for the petitioners to

explain the delay of 4162 days with cogent reasons.

I am unable to accept the claim of petitioners that said Mohan

Reddy did not inform his wife that he purchased such a huge

extent of property by payment of more than 26 Lakhs.

Therefore, I am not accepting the contention of the

petitioners. The delay of 4162 days is not explained as such,

the reason is liable to be dismissed.

16. In the result, the petition is dismissed.

Miscellaneous applications, if any pending, shall stand

closed. There shall be no order as to costs.

______________________________ JUSTICE SAMBASIVA RAO NAIDU

18th July, 2022.

PLV