P Anjaiah, Hyderabad vs Smt M Padmavathi, Nalgonda Dist
2023 Latest Caselaw 39 Tel

     THE HONOURABLE JUSTICE A.SANTHOSH REDDY

                       C.R.P.No.2944 of 2016
ORDER:

This civil revision petition is directed to set aside the order

dated 30.04.2016 in I.A.No.35 of 2016 in O.S.No.412 of 2013 on the

file of Senior Civil Judge's Court, Miryalaguda.

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

counsel for the respondent. Perused the record.

3. The respondent-plaintiff filed suit in O.S.No.412 of 2013 for

recovery of money of Rs.5,04,000/- against the petitioner-defendant.

When the summons were sent to the petitioner, he was not available

and his father and the daughter refused to receive the same.

Thereafter, the trial Court ordered substituted service by way of

publication in Prajashakthi Telugu daily newspaper. The petitioner

failed to appear on the date fixed for his appearance and he was set

ex parte and an ex parte decree and judgment was passed on

05.09.2014 for the suit claim along with interest and costs.

Subsequently, the petitioner filed I.A.No.35 of 2016 under Section 5

of the Limitation Act, 1963 (for short "the Act") to condone the delay

of (510) days to enable him to file the petition under Order 9 Rule 13

of the Code of Civil Procedure, 1908 ( for short "C.P.C.") to set aside

the ex parte judgment and decree dated 05.09.2014. The respondent-

defendant resisted the application. On consideration of the material

on record, the trial Court dismissed the application vide order

30.04.2016. Aggrieved and dissatisfied by the same, the petitioner

filed the present revision.

4. Besides filing the written submissions, learned counsel for the

petitioner submits that the trial Court has committed error in

dismissing the application filed for condonation of delay. He submits

that the summons were treated as 'refused' once by the father of the

petitioner and again by his daughter, which is in fact not true, as his

father died on 18.03.1996. The petitioner was not having any

knowledge about the filing of the suit and as soon as, he got

knowledge about the pendency of the suit, he filed the present

application for condonation of delay. As such, he prays to set aside

the impugned order.

5. Per contra, learned counsel for the respondent-plaintiff submits

that the petitioner has got knowledge about the filing of the case and

as per the endorsement of the process-server, when the summons

were sent to the petitioner, they were refused once by the father and

again by the daughter of the petitioner. The petitioner failed to show

sufficient cause for abnormal delay in filing the petition. The trial

Court has rightly dismissed the application. He has placed reliance

on the decision of Brijesh Kumar v. State of Haryana1.

6. Thus, after hearing the submissions of the learned counsel for

the both parties and on consideration of the material on record, the

only question that arises for consideration is; whether there is

sufficient cause to condone the delay of (510) days to file the petition

under Order 9 Rule 13 of C.P.C?

7. The first ground urged by the learned counsel for the petitioner

is that the process server returned the summons as "refused" once by

the father and again by the daughter of the petitioner. It is his

contention that his father died on 18.03.1996. The report of process

server is not correct. However, the petitioner has not taken the said

ground in the affidavit filed by him in support of the present

application. The respondent has not furnished the correct address in

the suit O.S.No.412 of 2013 and no summons or notice was served

upon him.

2014 (11) SCC 351

8. It is not in dispute that the ex parte decree was passed on

05.09.2014. Subsequently, the respondent filed EP.No.147 of 2015

on the file of Senior civil Judge's Court, Ranga Reddy District and

got attachment of the movables of the petitioner. Then, the petitioner

filed the present application for condonation of delay as stated above.

9. The trial Court at para (ii) and (iii) of the impugned order

observed as under:

" This is not a single direct case filed in the year 2013. The origin of litigation was since 1988 to 1990. The State Bank of Hyderabad, Miryalaguda Branch filed suit in O.S.No.48 of 1990 against this Palvai Anjaiah as principal borrower, M.Padmavathi as guarantor-cum-mortgagee and S.Venkateshwar Rao as another guarantor and said suit was decreed way back on 31.01.1995 in Ex.R.1 Judgment and decree. It is pertinent to note that defendant Palvai Anjaiah was described as resident of Miryalaguda Town, Nalgonda District and he appeared in person in that suit.

He is strongly contending now that he changed his address and got shifted to Hyderabad by the time this suit in O.S.No.412/2013 was filed. In order to support his contention he filed Ex.P.1. He did not take any steps to file registered address showing his change of residence informing the same to M.Padmavathi or the State Bank of Hyderabad, Miryalaguda Branch in O.S.No.48/1990. In the circumstances the suit summons in O.S.No.412/2013 were tendered on defendant in the same address given as resident of Vasavi Colony, Miryalaguda Town."

10. In Brijesh Kumar's case supra, the Apex Court at

para Nos. 7, 8, 9 and 10 held as under:

7. The Privy Council in General Accident Fire and Life Assurance Corpn. Ltd. v. Janmahomed Abdul Rahim [(1939-

40) 67 IA 416 : (1941) 53 LW 212 : AIR 1941 PC 6] , relied upon the writings of Mr Mitra in Tagore Law Lectures, 1932 wherein it has been said that : (IA p. 426)

A law of limitation and prescription may appear to operate harshly and unjustly in a particular case, but if the law provides for a limitation, it is to be enforced even at the risk of hardship to a particular party as the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by law.

8. In P.K. Ramachandran v. State of Kerala [(1997) 7 SCC 556 : AIR 1998 SC 2276] , the Apex Court while considering a case of condonation of delay of 565 days, wherein no explanation much less a reasonable or satisfactory explanation for condonation of delay had been given, held as under : (SCC p. 558, para 6)

"6. 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."

9. While considering a similar issue, this Court in Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649 : (2014) 1 SCC (Civ) 713 : (2014) 4 SCC (Cri) 450] laid down various principles inter alia : (SCC pp. 658-59, paras 21-22)

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"21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

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21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

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21.9. (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.

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22.4. (d) 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."

10. The courts should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. However the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone."

11. In the instant case, after considering the facts and circumstances

of the case, I feel that the petitioner has failed to show sufficient

cause or any acceptable grounds for condonation of the inordinate

delay of (510) days in filing the application to set aside the ex parte

judgment and decree.

12. At para (viii) of the impugned order, the trial Court observed as

under:

"In this case refusal to condone delay would not result in a meritorious manner being thrown out at the very threshold stage

because this suit is second round in the series of litigation. Already the bank obtained decree against this petitioner/defendant as principal borrower and other guarantors. In the second round of litigation, one of the guarantors (respondent-plaintiff herein) discharged the decreetal debt due to the bank and stepped into the shoes of the bank to subrogate her. In this case, lenient view cannot be taken."

13. Having regard to the above, I hold that the trial Court has

rightly appreciated the contentions raised by the petitioner. There are

no bona fides on his part for his inaction or negligence, which would

deprive him the protection of Section 5 of the Act. The petitioner

failed to explain the delay properly, satisfactorily and convincingly

and as such, the Court cannot condone the delay as sought by him.

14. In view of the facts of the case and above cited judgment,

I do not find any illegality or infirmity in the impugned order

warranting interference by this Court.

15. Accordingly, the Civil Revision Petition is dismissed. There

shall be no order as to costs. Pending miscellaneous petitions, if any,

stand closed.

_______________________ A.SANTHOSH REDDY, J 04.01.2023 Nvl