G Lingamma, Nalgonda Dist vs P Vivekananda Reddy, Nalgonda ...
2023 Latest Caselaw 954 Tel

 THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

                      C.R.P.No.3161 OF 2016
ORDER:

This civil revision petition is directed against the order dated

22.04.2016 in I.A.No.377 of 2011 in O.S.No.94 of 2010, on the file

of the Senior Civil Judge, Suryapet, wherein the said application

filed by the petitioner-defendant No.4 under Section 5 of the

Limitation Act read with Section 151 of the Civil Procedure Code

(for short, 'CPC') seeking to condone the delay of 235 days in

filing the petition under Order IX Rule 13 CPC, was dismissed.

2. Heard Mr. V.Ravi Kiran Rao, learned senior counsel,

representing Mr. V.Rohit, learned counsel for the petitioner and

Mr. K. Narashima Chari, learned counsel for respondent No.1.

Perused the record.

3. The first respondent herein/plaintiff filed the suit O.S.No.94

of 2010 against respondent Nos.2 to 4/defendants 1 to 3 and revision

petitioner herein/defendant No.4 for partition of the suit schedule

properties. Suit summons were served on defendant Nos.1 to 3

and the summons against defendant No.4 were returned unserved,

as refused. Thereafter, ex parte judgment and decree was passed

on 20.12.2010. Respondent No.1 filed an application for

appointment of Advocate-Commissioner in the final decree petition.

Immediately, the revision petitioner filed application under Order

IX Rule 13 CPC to set aside the ex parte preliminary decree along

with an application in 1.A.No.377 of 2011 to condone the delay of

235 days in filing the petition to set aside the ex parte decree.

Respondent No.1 herein resisted the same by filing counter affidavit

denying the allegations. On a consideration of the material on

record, the trial Court dismissed I.A.No.377 of 2011 vide orders

dated 22.04.2016 stating that the revision petitioner failed to explain

proper and sufficient cause to condone the delay of 235 days .

Aggrieved by the same, the present revision is filed.

4. Mr. Ravi Kiran Rao, learned senior counsel, apart from

making oral submissions also filed written submissions, vehemently

contends that the trial Court has committed error in dismissing the

application file to condone the delay of 235 days in filing the

application to set aside the ex parte preliminary decree. Learned

senior counsel further contends that the Courts have to take a liberal

and pragmatic justice oriented, non-pedantic approach while dealing

with the applications filed for condonation of delay and he prayed to

set aside the impugned order. Learned senior counsel placed reliance

on the following decisions:

      i.     N.BALAKRISHNAN v. M.KRISHNAMURTHY1

      ii.    S.GANESHA RAJU (DEAD) THROUGH LRs
             AND ANOTHER v. NARASAMMA (DEAD)
             THRUOGH LRs. AND OTHERS2

      iii.   ESHA BHATTACHARJEE v. MANAGING
             COMMITTEE OF RAGHUNATHPUR NAFAR
             ACADEMY AND OTHERS3

      iv.    R.KRISHNA KISTAIAH v. R.BALA NARSAIAH
             DIED) PER LRs AND OTHERS4

      v.     ROBIN THAPA v. ROHIT DORA5

5. Per contra, Mr. K. Narasimha Chari, learned counsel for the

respondents, while supporting the impugned order, submits that the

trial Court has rightly refused to condone the delay of 235 days in

filing the petition to set order the ex parte preliminary decree, as the

petitioner failed to show any sufficient cause for such delay and that

the impugned order does not suffer from infirmity and prayed to

dismiss the revision.

(1998) 7 SCC 123

(2013) 11 SCC 341

2014(1) ALD 21 (SC)

2014 (2) ALT 634 (DB)

AIR 2019 SC 3225

6. Thus, on hearing the submissions of both the learned counsel,

the only question that arises for consideration is - whether the

impugned order is sustainable in law?

7. The revision petitioner filed an application under Order IX

Rule 13 CPC to set aside the ex parte preliminary with an

application in I.A.No.377 of 2011 to condone the delay of 235 days

in filing the application to set aside the ex parte decree passed

20.12.2010.

8. It is the case of the revision petitioner that she purchased

the suit 'A' schedule property i.e., land in Sy.No.158 to extent of

Acs.01-04 Gts., situated at Kuda Kuda Village, Chivemla Mandal,

Nalgonda District under a registered sale deed dated 27.02.2008

from respondent Nos.2 to 4 herein. It is stated by the respondent

No.1 in the plaint that respondent Nos.2 to 4 in collusion with each

other sold away the suit 'A' schedule property and that her father/

respondent No.2 and respondent No.1 are close friends and without

any sale consideration, the sale deed was executed. It is also alleged

that respondent No.1 demanded for amicable settlement. Since the

respondent No.2 failed to do so, the suit in O.S. No.94 of 2010 was

filed for partition and separate possession by respondent No.1 and

also seeking declaration that the registered sale deed dated

27.02.2008 as null and void.

9. Learned senior counsel relied on the decision in

N.BALAKRISHNAN's case (1 supra), wherein the Hon'ble Apex

Court has laid down the principles on applications filed under

Section 5 of the Limitation Act seeking condonation of delay and

held at paragraphs 9 and to 13 as under:

It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the delay. In such cases, the superior cut would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.

The reason for such a different stance is thus:

The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations in not because on the expiry

of such time a bad cause would transform into a good cause.

Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749].

It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation

expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.

10. Keeping the above principles in mind and in view of the other

authoritative pronouncements relied on by learned senior counsel for

the petitioner, let me consider whether there is sufficient cause to

condone the delay of 235 days in the instant case.

11. The grounds urged in the affidavit and the stand putforth by

the petitioner herein for condonation of delay are that she is semi-

illiterate and came to know about the ex parte preliminary decree

through her relatives in the village and immediately she approached

her counsel and filed the present application to condone the delay of

235 days in filing the application under IX Rule 13 CPC to set aside

the ex parte decree. The petitioner further stated that the delay in not

filing the application in time was neither willful nor negligence and

if the delay is not condoned and the ex parte decree is not set aside,

she will be put to loss and great injustice would be caused to him.

12. Barring the aforesaid, most of the other pleadings pertain to

merits of the case. On a close look at the affidavit filed for

condonation of delay, I find that though the delay is substantial, the

same has been sought to be explained in a manner even if it may not

be foolproof but is quiet convincing.

13. Keeping in view the fact that the petitioner is bona fide

purchaser of suit ' A' schedule property, which was purchased under

a registered sale deed from respondent Nos.2 to 4 and the present

suit is filed by respondent No.1 for partition of the same against the

petitioner and also respondents Nos.2 to 4 herein and for allotment

of shares to her as well as respondent Nos.2 to 4 and due to the ex

parte proceedings being passed against respondent Nos.2 to 4 and

revision petitioner, who are defendant Nos. 1 to 4, it would certainly

deprive the valuable property rights of the petitioner.

14. For the foregoing reasons, I am of the view that the delay of

235 days occasioned in filing the application seeking condonation of

delay along with the application under Order IX Rule 13 CPC was

not deliberate and after considering the facts and circumstances of

the case and keeping in view the fact that the rules of limitation are

not meant to destroy the rights of the parties and herein the rights of

the petitioner over the schedule property was, in fact, transferred at

the instance of respondent Nos.2 to 4, who are none other than

co-sharers of respondent No. 1. Therefore, the cause shown for the

delay and the explanation is acceptable and can be condoned.

15. Therefore, I find that the trial Court had committed

jurisdictional error in not considering the application in a pragmatic

manner, keeping in view the rights of the revision petitioner and as

such the same is liable to be set aside in exercise of powers under

Article 227 of the Constitution of India.

16. In the result, the civil revision petition is allowed. The

impugned order dated 22.04.2016 in I.A.No.377 of 2011 in

O.S.No.94 of 2010, on the file of the Senior Civil Judge, Suryapet, is

hereby set aside. Consequently, I.A.No.377 of 2011 stands allowed.

There shall be no order as to costs.

17. Miscellaneous petitions, if any pending, stand closed.

_______________________ A.SANTHOSH REDDY, J 27.02.2023 Lrkm