Telangana High Court

K Subhashini vs Gaddam Madhusudhan Reddy on 25 March, 2022

Bench: P Naveen Rao, G.Radha Rani

    IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF
                       TELANGANA
                         ********

I.A. No.1 of 2019 in/and APPEAL SUIT No.161 of 2019

Between:

Smt. K. Subhanshini W/o.Sri K. Satyanarayana Reddy, Aged about 61 years, Occ: House wife, R/o.H.No.17-2-259/4, Opp: Madannapet Police Station, Yakuthpura, Hyderabad.

.... Petitioner/appellants And

Gaddam Madhusudhan Reddy S/o.late G. Narsimha Reddy, Aged about 65 years, Occ: Service, R/o.EWSH-370, Santoshnagar, Hyderabad and others ..... Respondents/Respondents

The court made the following:

PNR,J&Dr.GRR,J IA No.1 of 2019 in/and AS No.161 of 2019

HON'BLE SRI JUSTICE P.NAVEEN RAO AND HON'BLE SMT DR.JUSTICE G.RADHA RANI I.A. No.1 of 2019 in/and APPEAL SUIT No.161 of 2019

ORDER: (Per Hon'ble Dr. Justice G. Radha Rani)

This petition is filed by the petitioner/appellant under Section 5 of the

Limitation Act, 1963 to condone the delay of 1064 days in filing the appeal.

2. The petitioner filed an affidavit in support of the petition submitting

that she along with her sisters filed O.S. No.27 of 2006 on the file of Principal

District and Sessions Judge, RR District at LB Nagar, Hyderabad against the

defendants for partition of suit schedule properties i.e., ancestral agricultural

lands aggregating to Acs.33.24 gts., in various survey numbers situated at

Kurmalguda village and Grampanchayath, Saroornagar Revenue Mandal, R.R

District claiming 1/4th share each in the suit properties along with 1st defendant.

On contest the suit was dismissed vide judgment and decree dated 30-11-2015.

Aggrieved by the same, she preferred the appeal. She was not well due to ill

health on account of breast cancer and treatment and also under the bonafide

impression that her sisters might have preferred the appeal. Though her sisters

PNR,J&Dr.GRR,J IA No.1 of 2019 in/and AS No.161 of 2019

informed her that they were going to file appeal, did not choose to prefer any

appeal for the reasons best known to them. She was frequently visiting USA for

her treatment, where her daughters were staying and attending to her from time

to time. She returned to India only on 20-8-2018. On her return, she again fell ill

and could not contact her sisters or her counsel to seek the update of the case.

Due to the treatment under gone by her, the enquiry of the case went away from

her mind. The delay in filing the appeal was neither willful nor wanton but for

the reasons beyond her control and prayed to condone the delay.

3. Notice was issued to the respondents, but there was no representation

for them even after receipt of notice.

4. Heard the learned counsel for the petitioner/appellant.

5. The learned counsel for the appellant filed the copy of the passport of

the petitioner, the medical record of petitioner in Omni hospitals, Dilshuknagar

and relied upon the citations of the Hon'ble Apex Court in Executive Officer,

Antiyur Town, Panchayath v. G. Arumugam (dead) by legal

representatives1, C.K. Prahalada and others v. State of Karnataka and

others2 and N. Balakrishnan v. M. Krishnamurthy3.

(2015) 3 SCC 569

(2008) 15 SCC 577

(1998) 7 SCC 123

PNR,J&Dr.GRR,J IA No.1 of 2019 in/and AS No.161 of 2019

6. Now the point for consideration is whether there is sufficient cause to

condone the delay of 1064 days in preferring the appeal.

7. The record would disclose that the suit was pertaining to the year 2006

and it was decided on 30-11-2015 dismissing the same with costs. The appeal

was preferred by the petitioner in the month of March, 2019 along with a

petition to condone the delay of 1064 days in filing the appeal. The reasons

given by the petitioner to condone the inordinate delay of more than three and

half years in filing the appeal was that she was ill, suffering with breast cancer

and was taking treatment and was frequently visiting USA for her treatment and

was under the impression that her sisters might have preferred the appeal.

8. The medical record of Omni hospitals filed by her i.e., the X-ray chest

PA view dated 11-12-2015, the ultra sound scanning of whole abdomen dated

28-10-2016, the X-ray chest PA view dated 28-10-2016, all would disclose that

they were normal and no abnormality was detected. No reports showing that she

was suffering with breast cancer or taking treatment in USA were filed. The

passport entries also would not disclose her visiting USA subsequent to 20-8-

2018. No documentary evidence was filed to show that she fell ill even

subsequently.

PNR,J&Dr.GRR,J IA No.1 of 2019 in/and AS No.161 of 2019

9. The Hon'ble Apex Court in Executive Officer, Antiyur Town,

Panchayath's case (1 supra) held that:

"Delay in the present case was occasioned only on account of the deliberate lapses on the part of the Executive Officer of the Panchayat at the relevant time. If the court is convinced that there had been an attempt on the part of the government officials or public servants to defeat justice by causing delay, the court, in view of the larger public interest, should take a lenient view in such situations, condone the delay, however huge may be the delay, and have the matter decided on merits."

10. Thus, in the above case the Hon'ble Apex Court considering that

the delay was caused by the government officials to defeat justice, in view of

larger public interest had taken a lenient view.

11. In C.K. Prahalada and others case (2 supra) held that:

"ordinarily SC would not interfere in condoning the long delay but however considering that the HC had condoned the same and the appeal against the ex parte decree was allowed by the HC, and the first appeal filed by the State had also been allowed by the HC, had not interfered with the same."

12. In N. Balakrishnan's case (3 supra), the Hon'ble Apex Court

held that:

"acceptability of explanation for the delay is the sole criterion, length of delay is not relevant. In the absence of any mala fides or deliberate delay as a dilatory tactic, the court should normally condone the delay."

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13. The Hon'ble Apex Court in several other cases like Pundlik

Jalam Patil v. Executive Engineer, Jalgaon Medium Project4,

observed that:

"The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing timelimit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy."

14. In P.K.Ramachandran v. State of Kerala and Anr.5, observed that:

"while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously."

15. In Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd.,6 it is

observed and held as under:

(2008) 17 SCC 448

(1997) 7 SCC 556

(1962) 2 SCR 762

PNR,J&Dr.GRR,J IA No.1 of 2019 in/and AS No.161 of 2019

"In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favor of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice."

16. In Basawaraj and Anr. v. Special Land Acquisition Officer7, it is

observed and held by the Court that:

"the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature."

17. Considering the aforesaid decisions of the Hon'ble Apex Court and

considering the facts of the case on hand and considering the averments in the

(2013) 14 SCC 81

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application for condonation of delay, we are of opinion that no explanation

much less sufficient or satisfactory explanation had been offered by the

petitioner herein for condoning the huge delay of 1064 days in preferring the

appeal. Hence, it is considered not a fit case to exercise the discretion in favor

of the petitioner to condone the delay.

18. Accordingly, I.A. No.1 of 2019 is dismissed. Consequently,

A.S. No.161 of 2019 stands dismissed. No order as to costs.

Miscellaneous Petitions, if any pending, shall stand closed.