Alluri Venkatrama Reddy vs Govindu Kantha Reddy
2022 Latest Caselaw 5355 Tel

     THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

                       C.R.P.No.3061 OF 2017
ORDER:

This civil revision petition is directed against the

order, dated 16.03.2017, in I.A.No.97 of 2016 in unnumbered

A.S.No.-of 2017 on the file of IX Additional District Judgee,

Wanaparthy.

2. Heard the learned counsel for the petitioner and the learned

counsel for the respondent.

3. The petitioner, who is the plaintiff, filed O.S.No.34 of 2012

against the respondent herein on the file of Junior Civil Judge,

Wanaparthy for recovery of money and the said suit was decreed on

13.10.2015. Aggrieved by the said judgment, the respondent

preferred the appeal with delay of (172) days along with application

in I.A.No.97 of 2016 to condone the said delay in preferring the

appeal.

4. It is stated in the affidavit filed in support of I.A.No.97 of 2016

by the respondent that due to ill-health and financial problems, he

could not contact his counsel. As such, the appeal was not filed

within time. The said delay was neither willful nor intentional. The

petitioner resisted the said application on the ground that there is no

sufficient cause to condone the delay and there are no merits in the

said application.

5. The trial Court after hearing both sides allowed I.A.No.97 of

2016 on costs of Rs.1000/- (Rupees one thousand only) payable to the

petitioner. Aggrieved by the same, the petitioner filed the present

revision on the ground that the trial Court ought not to have allowed

the application, as there was no iota of proof to substantiate the ill-

health of the respondent and financial crunch.

6. Learned counsel for the petitioner submits that the respondent

has not filed any medical record to show his ill-health and he failed to

explain day to day delay in filing the appeal.

As such, the impugned order is unsustainable. In support of his

contentions, he relied on the judgments of Balwant Singh (dead) v.

Jagdish Singh1 and Allala Bhagavanth Rao v. Garvandula

Vijayalaxmi2.

7. Learned counsel for the respondent submits that the

respondent could not file the appeal within the stipulated time as the

1 2010(5) ALD 97 (SC) 2 2015(5) ALD 598

he was suffering from ill-health and due to financial crisis, he could

not contact his counsel and thus, there occurred a delay of (172) days

in filing the appeal. The said delay was neither willful nor

intentional. As such, the trial Court has rightly allowed the

application.

8. Thus, the question that arises for consideration is whether the

order, dated 16.03.2017, passed by the trial Court is sustainable?

9. Undisputedly, the suit filed by the petitioner in O.S.No.34 of

2012 for recovery of money against the respondent was decreed

by the trial court vide judgment, dated 13.10.2015. The respondent

preferred an appeal before the appellate court along with

an application to condone the delay of (172) days in filing the appeal.

10. The Apex Court in COLLECTOR, LAND ACQUISITION,

ANANTNAG v. MST. KATIJO3 at para 3 held as follows:

"The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice--

that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not

3 (1987) 2 SCC 107

appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is con- doned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so".

11. It is settled principle of law that condonation of delay is a

matter of discretion of the Court and Section 5 of the Limitation Act,

1962 does not say that such discretion can be exercised, only if the

delay is within certain limit. Length of delay is no matter,

acceptability of explanation is the only criteria. The word 'sufficient

cause' is not defined either in Limitation Act or in the Code of Civil

Procedure; There is no straight jacket formula to decide whether the

cause shown for condonation of delay is sufficient cause or not. It

depends on the facts and circumstances of each case, the Court can

exercise discretion and decide the sufficient cause. In Lanka

Venkateswarlu (Died) by L.Rs. v. State of A.P.4, the Apex Court

heavily laid on the Courts when to allow the petitions, though no

sufficient cause is made out, and held as under:

"We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation, especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms.

The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by

4 2011 (1) UPLJ 242 (SC)

reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers."

12. Coming to the facts of the present case, there was delay of

(172) days in filing the appeal. But, no where, in the affidavit, the

dates of commencement of his sickness and recovery disclosed.

Except making a bald allegation, no medical certificate was produced

to substantiate his contention. Therefore, in the absence of details of

ill-health and duration and documentary proof from a competent

Doctor, it is not justified to accept the contention that there is

sufficient cause to condone the delay of (172) days in filing the

appeal. Having regard to the judgment of Lanka Venkateswarlu

supra, I am of the view that the trial Court has not exercised its

discretion in judicious and systematic manner and erroneously

allowed the application only by relying on the averment of respondent

that he suffered from ill-health without any kind of documentary

evidence like medical certificate to substantiate his contention and

condoned the delay by imposing certain costs. In instant case, the first

ground urged for condonation of delay is due to ill-health, the

petitioner was unable to prefer the appeal within time. The petitioner

failed to make out any sufficient cause except making a bald

unsubstantiated allegation in the affidavit. Keeping in view, the law

declared by Apex Court on the concept of real justice, substantial

justice, the Courts cannot allow the petitions under Section 5 of the

Limitation Act without any sufficient cause for the delay.

13. For the foregoing reasons, I am of the view that the trial Court

has committed error in condoning the delay and liberally construed

the word 'sufficient 'cause, improperly exercised judicial discretion.

As such, the impugned order suffers from infirmities warrants

interference.

14. In the result, the Civil Revision Petition is allowed. The

impugned order, dated 16.03.2017, in I.A.No.97 of 2016 in

unnumbered A.S.No.---of 2017 is set aside. There shall be no order

as to costs. Pending miscellaneous petitions, if any, stand closed.

_______________________ A.SANTHOSH REDDY, J 27.10.2022 Nvl