The District Collector vs Kasha Janardhan Rao
2022 Latest Caselaw 3897 Tel

         HONOURABLE SMT JUSTICE P. SREE SUDHA

         CIVIL REVISION PETITION No.959 OF 2020

ORDER:

This Civil Revision Petition is filed against the orders in IA

No. 1200 of 2019 in OS No. 79 of 2004, Dated 11.03.2019

passed by the Court of I Additional Chief Judge, City Civil

Court, at Secunderabad.

2. The Assistant Government Pleader filed the application

before the trial Court for condoning the delay of 4242 days i.e.

nearly 11 years, 7 months in filing the set aside ex parte decree

petition dated 26.04.2005 passed in OS No. 79 of 2004. Trial

Court after considering the both sides arguments dismissed the

I.A. No. 1200 of 2019 in O.S. No. 79 of 2004 against which the

present Civil Revision Petition is preferred.

3. Revision Petitioner stated that the suit has to be decreed

basing on the case of the plaintiffs but not on the weakness of

the defendants. But the suit was decreed for declaration of title

and correction as well as modification of Town Survey Land

Register and Settlement Record under Section 14 of the A.P.

Survey and Boundaries Act, 1923 and injunction was granted.

In fact, the Town Survey of Lalaguda Village was conducted C.R.P. No. 959 of 2020

during the years 1964 to 1972 and after finalisation of the town

survey it was notified in Government Gazette vide its

notification No. 38, dated 29.06.1976. Later, the town survey

of Lalaguda Village has become final. The suit was filed in the

year 2006 and it is clearly barred by limitation. Plaintiff failed

to issue mandatory notice before filing the suit but the trial

Court without considering the same, decreed the suit in favour

of the plaintiffs, as such they filed this application to set aside

the ex parte and mainly contended that they furnished the

written statement/counter to the Assistant Government Pleader

but he has not filed the same and not contested the case and

also brought the same to the notice of the authorities and it

resulted in apparent loss of prime and valuable land of the

State. The trial Court without considering the same dismissed

their application. The Deputy Director Survey and Land

Records, Hyderabad addressed a letter to the Assistant

Government Pleader to return the file to its office for taking

necessary action but he has not handed over the file No.

A4/909/2004 and they filed I.A. No. 1200 of 2016 to condone

the delay but it was dismissed on the ground that no action

was taken against the Assistant Government Pleader for not

handing over the file. The trial Court also observed that the C.R.P. No. 959 of 2020

term of a Government Pleader would be three years and no

reasons assigned as to what was the reason for the succeeding

advocate for not pursing the matter. He further submitted that

the petitioners failed to show sufficient cause to condone he

abnormal delay of nearly 11 years, 7 months in filing the set

aside ex parte decree petition dated 26.04.2005 passed in OS

No. 79 of 2004. For enforcement of the Judgment and decree

the decree holder was not sure of his rights and waited for a

considerable period. The decree passed by the Court below

without jurisdiction is non est under the eyes of law and it can

be challenged at any point of time. The delay is squarely on

account of the inaction on the part of the Government Pleader.

Therefore, requests to set aside the order of the trial Court.

4. The Deputy Director Survey and Land Records,

Hyderabad filed affidavit before the trial Court stating that due

to non-handing over the files due to heavy work in their office

the case was not taken up and later they came to know that

about the present case through Additional Government Pleader

Sri A. Komaraiah, who attended the Court for representing the

other matter that already ex parte decree was passed on

26.04.2005. As the previous AGP has not handed over the

files they did not have knowledge of the case. They have a good C.R.P. No. 959 of 2020

case both oral and documentary evidence to disprove the case.

Therefore requests the Court to set aside the ex parte order

dated 26.04.2005 by condoning the delay of 4242 days. The

said application is filed on 07.10.2016.

5. The counsel for the petitioners relied upon the decision

reported between Ram Kumar Goyel And Others Vs. Bhuwan

Singh Pradhan1 dated : 26.09.2006 wherein it was held at

Para No.21 as under:

"It is, therefore, well settled by now that the explanation put forward in the application for condonation of dealy should be considered along with the merits of the Appeal and if serious points of law are prima facie found to have been raised in the Appeal, the application for condonation of delay is not to be lightly brushed aside taking into account only the length of delay in the matter. A reference to the merits of the Appeal for the limited purpose of ascertaining whether arguable points of law have been raised would invariably be desirable for advancing the cause of substantial justice while considering the question of condonation of delay Under Section 5 of the Limitation Act."

5(i) The learned counsel for the petitioners further quoted the

doctrine that "every day's delay must be explained" does not

mean that it should be an explanation covering every hour's

AIR 2007 Sik 39 C.R.P. No. 959 of 2020

delay or for that matter every second's delay. The doctrine

must be applied in a rational common sense pragmatic manner.

The counsel for the petitioners also submitted that the suit filed

by the respondents is barred by limitation that fact also to be

considered while condoning the delay to set aside the ex parte

order, but the trial Court has not considered the length of the

delay and dismissed the application.

6. The learned counsel for the respondents relied upon the

decision reported between State of Madhya Pradesh and

Others Vs. Bherulal2 in which it was held that delay cannot

be condoned mechanically merely because the government or a

wing of the Government is a party. Where there are such

inordinate delays that the Government or State authorities

must pay for wastage of judicial time which has its own value.

The irony is that in none of the cases any action is taken

against the officers, who sit on the files and do nothing. The

learned counsel for the respondents further stated that the

reason stated by the petitioners for abnormal delay is simply

non-handing over of the records by the Asst. Government

(2020)10 Supreme Court Cases 654 C.R.P. No. 959 of 2020

Pleader which is not sufficient or satisfactory to condone the

abnormal delay.

7. O.S. No. 79 of 2004 is filed for declaration of title and

correction, modification of town survey land register and

settlement records under Section 14 of the A.P. Survey and

Boundaries Act of 1923 for perpetual injunction. A perusal of

the judgment shows that after summons were received by the

defendants 1 and 2 the Government Pleader offered to file

appearance on their behalf and did not file vakalat or written

statement, hence they were set ex parte. It clearly shows that

in spite of the receipt of summons AGP could not file vakalat

or written statement for the reasons known to him. The decree

was passed on 26.04.2005. In E.P. No. 50 of 2016 also notices

were served upon the petitioner herein but they could not turn

up, again they filed E.P. No. 211 of 2016 for arrest, then only

they came up with this application to set aside the ex parte

order by condoning the delay. It clearly shows the negligence

on the part of the petitioner herein. Merely because the land is

pertaining to the State Government and it is valuable land, it

cannot be said that they can challenge the decree after 11 years

6 months. Now the petitioner herein stated that the land survey

was conducted in the year 1964-1972 and notification was C.R.P. No. 959 of 2020

issued on 29.06.1976 but the suit is filed in the year 2004

and thus suit is barred by limitation. No mandatory notice

was issued under Section 80 of the CPC. As it is an ex parte

decree the trial Court has not even framed the issues.

Therefore considering the serious lapses requests the Court to

condone the delay and give an opportunity. When the

opportunity was given to them by duly serving of summons

they could not appear before the Court and kept quiet for 11 ½

years and that even the delay was not properly explained by the

respondents herein. But no doubt suit was decreed in the year

2005 and E.P. was filed in the year 2016. As they filed the E.P.

in time the arguments of the learned counsel for the petitioner

that they are not sure of their rights cannot be accepted. The

trial Court rightly pointed out that no action was initiated

against the Government Pleader who has not handed over the

files. Moreover the tenure of the Government Pleader is only for

three years and they have not assigned any reason for non-

pursuing the case later. The dispute in the suit is regarding

the land to an extent of 1230 sq. yards. The suit was decreed in

favour of the plaintiffs for the lapses on the part of the

Government Employer is vicariously liable for the acts of his

employee (AGP). No action is taken against concerned A.G.P.

C.R.P. No. 959 of 2020

At least his successor should make proper representation, but

he did not do so. The petitioners had slept over the matter for

11 ½ years and now raised hue and cry that the subject land is

a valuable land of the Government stating that it resulted in

loss of prime and valuable land of the State. When the suit is

filed before the Court, an opportunity was given to both the

parties. After 11 ½ years the petitioners cannot raise

contention that the subject land is a valuable land of the State.

There should be periodical monitoring on the work of Assistant

Government Pleaders.

8. In a counter filed by the respondent No.5 contended that

the petitioners are trying to abuse the process of law and causes

miscarriage of justice. In spite of service of summons they did

not appear, as such he was set ex part and considering the

evidence of the petitioner and the documents filed before the

Court, the trial Court rightly passed the judgment under Ex.A1

sale deed dated 14.12.1961 and the extent of land is 1230 sq.

yards as per the certified copy of the Town Survey Registrar.

They also filed market value certificate, certified copy of Town

Survey Registrar, certified copy of extract ROH, certified copy of

Encumbrance Certificate. As such the suit was decreed in their C.R.P. No. 959 of 2020

favour. Later, E.P. No. 50 of 2016 was filed, even then the

petitioner was absent but the E.P. was dismissed on the ground

"that already there is direction to carry out necessary changes

in the Town Survey Land Registrar and Settlement of Records

including the area of 1230 sq. yards by deleting the records of

535 sq. yards and by allotting new town Survey Numbers in

Ward No. 136, Block-D of Lalapet Village. As such further

direction is not required". Later they filed E.P. No. 211 of 2016

for arrest. Then deponents gave reply filed a memo and sought

for 20 days time for producing the record in compliance with the

judgment. But they failed to comply the undertaking given by

them and it amounts to contempt. The summons were served

not only in the suit but also in the E.P on 30.06.2016.

Therefore this application is to be rejected at the threshold.

9. The trial Court after considering the arguments of both

sides observed that if the delay of 4242 days in filing the

petition to set aside the ex parte decree on the ground that the

Government Pleader did not hand over the files but they have

not taken any action against the Government Pleader. It was

also observed that the term of a Government Pleader would be

three years and no reasons are assigned for not taking up the

matter by the succeeding advocate and sufficient cause has not C.R.P. No. 959 of 2020

explained to condone the inordinate delay of 4242 days. Law of

limitation undoubtedly binds everybody including Government.

The Government departments are under special obligation to

ensure that they perform their duties with diligence and

commitment.

10. In the result, the Civil Revision Petition is dismissed by

confirming the orders in IA No. 1200 of 2017 in OS No. 79 of

2004, Dated 11.03.2019 passed by the Court of I Addl. Chief

Judge, City Civil Court, at Secunderabad.

11. As a sequel, pending miscellaneous petitions, if any, shall

stand dismissed as infructuous. No order as to costs.

                                             _____________________
                                              P. SREE SUDHA, J
Date:    ....07.2022.
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      C.R.P. No. 959 of 2020



                           C.R.P. No. 959 of 2020







HONOURABLE SMT JUSTICE P. SREE SUDHA
                                           C.R.P. No. 959 of 2020





       CIVIL REVISION PETITION No. 959 OF 2020

                  Date.        .07.2022




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