Naini Sanjeeva Reddy vs Kandala Baldev Reddy
2022 Latest Caselaw 6016 Tel

           THE HON'BLE SMT. JUSTICE P.MADHAVI DEVI

             CIVIL REVISION PETITION No.1376 of 2022

ORDER:

This Civil Revision Petition is filed by the petitioner against the

order of the Hon'ble Senior Civil Judge at Mahabubabad dated

07.06.2022 in I.A.No.347 of 2018 in O.S.No.71 of 2015 in refusing to

condone the delay of 591 days caused in filing a petition to set aside

the ex-parte decree passed on 21.03.2017 in the Suit in O.S.No.71 of

2015.

2. Brief facts leading to the filing of the present Civil Revision

Petition are that the respondents have filed a Suit in O.S.No.71 of

2015 before the Court of the Hon'ble Senior Civil Judge,

Mahabubabad against the petitioner herein as defendant for

declaration of title and permanent injunction. The defendant in the

Suit was set ex-parte and the Suit was decreed in favour of the

plaintiffs vide order dated 21.03.2017. The petitioner herein has filed

I.A.No.347 of 2018 seeking condonation of delay of 591 days in filing

of an application to set aside the ex-parte decree dated 21.03.2017.

The said application was dismissed by holding that the petitioner is

silent with respect to the reason for day to day delay of 591 days or PMD,J C.R.P.No.1376 of 2022

atleast the reason for delay of 591 days caused for filing the set aside

petition. With these observations, the I.A. was dismissed. Challenging

the same, the present Civil Revision Petition is filed.

3. Learned counsel for the petitioner submits that in the affidavit

accompanying the application for condonation of delay of 591 days,

the petitioner has clearly explained that he was not aware of the ex-

parte decree against him which was passed on the 21.03.2017 as he

has not received any notices or summons in the Suit from the Hon'ble

Court. It was submitted that on verification of the record, it was found

that the summons were sent only thorough Registered Post but it was

returned with the endorsed as 'unclaimed'. It was submitted that the

petitioner has never unclaimed the registered post at any point of time

and even the concerned postman, without coming for further

approach, has deliberately endorsed it as unclaimed, without the

consent, knowledge of the petitioner and his family members. The

petitioner submits that when he has approached the office of the

Tahsildar, for getting digital pattadar passbooks in respect of suit

schedule lands, he was informed about the ex-parte decree and on

coming to know the same, the petitioner has filed I.A.No.347 of 2018 PMD,J C.R.P.No.1376 of 2022

for condonation of delay in filing the petition under the Order 9 Rule

13 of Civil Procedure Code and a petition for setting aside the ex-parte

decree dated 21.03.2017. He submitted that though the petitioner has

given the reasons for the non-appearance of the petitioner before the

Court which has resulted in ex-parte decree and also the reasons for

delay in filing of the petition for setting aside the ex-parte decree, the

Civil Court has dismissed the same by holding the petitioner has not

given any reasonable cause. He submits that the issue involved in the

suit is with regard to the immovable property owned by him and

therefore, if the delay is not condoned and the ex-parte decree is not

set aside, he will suffer irreparable loss and great hardship and

therefore prayed for setting aside the order passed in I.A.No.347 of

2018 in O.S.No.71 of 2015 and consequently to direct to the lower

Court to consider the petition filed for setting aside the ex-parte

decree. He placed reliance upon the following decisions in support of

his prayer for condonation of delay.

1. G.Govindappa v. P.R.Ramakrishna Rao and others reported

in 2016 LawSuit(Hyd) 547 PMD,J C.R.P.No.1376 of 2022

2. Gulnar Gulabi v. Tasneem Sulthana reported in 2016

LawSuit(Hyd) 507

4. Learned counsel representing respondents relied upon the

counter affidavit filed by the respondent No.2. It is submitted that the

petitioner has filed I.A.No.347 of 2018 only to drag on the matter and

that the petitioner has not given any reasonable cause for the delay in

filing an application for setting aside the ex-parte decree. It is

submitted that the address given in the suit as well as the address

given in the present Civil Revision Petition are one and the same and

therefore it cannot be said that the petitioner has not been served with

the notices which have been sent by Registered Post Acknowledgment

due. It is submitted that the petitioner had deliberately not received

the notices, and therefore the postman has given endorsement that it

was unclaimed. It is further submitted that the petitioner has

participated in various other proceedings i.e., in W.P.No.17634 of

2020 and CRP No.1370 of 2021 and therefore, he cannot state that he

was not aware of the ex-parte decree passed by the lower Court.

Therefore, he prayed for the dismissal of the Civil Revision Petition. He

also placed reliance of the judgment of the Hon'ble Supreme Court in PMD,J C.R.P.No.1376 of 2022

the case of Esha Bhattacharjee v. Management Committee of

Raghunathpur Nafar Academy and others reported in (2013) 12

SCC 649 in support of his contentions.

5. Having regard to the rival contentions and material on record,

this Court finds that the only issue in this Civil Revision Petition is

whether the petitioner has given reasonable cause for condonation of

delay of 591 days. Though it has been held in a number of cases from

time to time that the petitioner has to explain the day to day delay

with reasonable cause, it has also been held that the Court should not

take pedantic approach in condonation of delay where the substantive

rights of a party or a property are involved in a Suit. The Hon'ble

Supreme Court in the case of Esha Bhattacharjee (cited supra) has

considered the case law on the issue and has culled out the principles

as applicable to an application for condonation of delay 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.

PMD,J C.R.P.No.1376 of 2022

(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 act-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 a 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 whereas the second calls for a liberal PMD,J C.R.P.No.1376 of 2022

delineation.

(ix) The conduct, behaviour and attitude of 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 scrutinised 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.

PMD,J C.R.P.No.1376 of 2022

(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."

6. As seen from the above principles, the Hon'ble Supreme Court

has held that as substantial justice, being paramount and pivotal, the

technical considerations should not be given undue and uncalled for

emphasis and that no presumption can be attached to deliberate

causation of delay. However, it was also observed that gross

negligence on the part of the counsel or litigant is to be taken note of.

The Hon'ble Supreme Court has further held that if the explanation

offered is concocted or the grounds urged in the application are PMD,J C.R.P.No.1376 of 2022

fanciful, the Courts should be vigilant not to expose the other side

unnecessarily to face such a litigation.

7. In the case before this Court, the only ground given by the

lower court for dismissing the condone delay application is that the

petitioner has not given the date on which he has approached the

Tahsildar for issuance of e-pattadar passbooks and as to when he has

come to know about the ex-parte decree. It is however not disputed

that e-pattadar passbook were to be issued. Therefore, the contention

of the petitioner that he has approached the Tahsildar for issuance of

such pattadar passbook cannot be doubted. In view of the same, the

reason given by the petitioner cannot be said to be fanciful or

concocted. Further, the notices in the suit were admittedly sent only

by RPAD and the same have been returned with the endorsement as

'unclaimed'. Section 27 of the General Clauses Act, 1897 provides that

a document is presumed/deemed to be sent/served if it is properly

addressed, prepaid and posted by Registered post, unless the contrary

is proved. However, in this case, the notice was returned as

unclaimed. Therefore, it is a rebuttable presumption that the notice

has been served on the defendant/petitioner. Further, it is noticed PMD,J C.R.P.No.1376 of 2022

that the Suit is for declaration of title and permanent injunction,

substantive rights of the parties over the suit schedule property are

involved. The judgments relied upon by the learned counsel for the

petitioner also support this proposition. Therefore, this Court is

inclined to accept the reasons given by the petitioner as reasonable

cause for non-appearance before the Court in the Suit and the delay

in filing the application to set aside the ex-parte decree against the

petitioner and condone the delay of 591 days and direct the Civil

Court to consider the application of the petitioner for setting aside the

ex-parte decree dated 21.03.2017.

8. Accordingly, the Civil Revision Petition is allowed. There shall be

no order as to costs.

Miscellaneous petitions, if any, pending in this Writ Petition,

shall stand closed.

_____________________________ JUSTICE P.MADHAVI DEVI Date: .11.2022 PRN PMD,J C.R.P.No.1376 of 2022

THE HON'BLE SMT. JUSTICE P.MADHAVI DEVI

CIVIL REVISION PETITION No.1376 of 2022

Date: .11.2022 PRN