Sri. K. Buchi Rajam vs Sri. Chetlapalli Rajaiah
2023 Latest Caselaw 1395 Tel

         THE HON'BLE SRI JUSTICE P.NAVEEN RAO
                          AND
      THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

     I.A.No.1 OF 2019 IN/AND APPEAL SUIT No.230 of 2019


ORDER : (Per Hon'ble Sri Justice P.Naveen Rao)


       Heard learned counsel Sri Rajashekhar Thallapally for

appellant/petitioner and learned counsel Sri Karnam Ramesh

for respondents.

2. The appellant/petitioner herein filed OS.No.69 of 2013 in

the Court of the I Additional District Judge, Warangal, praying

to grant decree for specific performance of contract based on

agreement of sale dated 11.07.2011 by directing the defendants

to execute and register a sale deed conveying the suit schedule

land in favor of the plaintiff or in favor of his nominee by

delivering the vacant possession of the same after receiving

balance sale consideration of Rs.1,43,40,000/- with interest at

the rate of 12% per annum.

3. On contest, the trial Court rendered the judgment and

decree in OS.No.69 of 2013 dated 29.12.2015. The suit was

decreed partly in favor of plaintiff, granting direction for refund

of Rs.20,00,000/- paid as part sale consideration on 11.07.2011

with interest at the rate of 9% per annum from the date of filing

of the suit till the date of decree and at the rate of 6% per

annum from the date of decree till realization. The trial Court

also declared that the plaintiff was entitled to Rs.1,00,000/-

towards compensation. The defendants were directed to pay the

above said amounts within two (2) months from the date of

receipt of decree, failing which, the plaintiff was further entitled

to interest at the rate of 6% per annum from the date of decree

till realization on the compensation amount.

4. The copy application was filed on 04.01.2016 and certified

copy was furnished on 26.1.2016. Thereafter, the appeal suit

was instituted on 22.4.2019. The appellant filed IA.No.1 of 2019

praying to condone the delay of 1065 days in filing the appeal

against the judgment and decree dated 29.12.2015.

5. According to learned counsel for appellant/petitioner,

even though all the documents were furnished to earlier Lawyer,

the Court fee and his fee were paid, the delay occasioned on

account of the Lawyer not taking up the matter and filing the

appeal. Having waited for considerable period of time, when the

appellant/petitioner tried to contact the Lawyer, he came to

know that the Lawyer has shifted his Office and his phone

number was also changed. Therefore, appellant/petitioner

could not trace the Lawyer for almost two years and only in the

month of March, 2019, he was able to contact the Lawyer and

thereafter, the matter was entrusted to another Lawyer through

whom the present appeal is filed.

6. Learned counsel for appellant/petitioner, contends that

the appellant was unwell for a very long time and has been

suffering with various ailments and due to his ill-health also the

delay is caused. He would further submit that the delay is not

willful and deliberate but was caused in above stated

circumstances and unless the delay is condoned, grave

prejudice would be caused to appellant.

7. Per contra, according to learned counsel for respondents,

the averments in the affidavit filed in support of this application

are very vague. The appellant does not give any details of the

Lawyer to whom the documents were entrusted earlier for filing

the appeal, shifting of his office etc. The affidavit does not

indicate the ailments with which appellant was suffering from.

The medical records filed by him do not support his stand that

he was unwell for a very long time and has undergone a

pacemaker surgery.

8. Learned counsel for respondents, further submits that as

per the directions of the trial Court, the defendants have

deposited the amounts ordered to be paid by them along with

interest vide cheque dated 29.02.2016 and the said amount is

still lying in the Court for the last seven years. Having waited for

considerable period of time, defendants entered into a

development agreement on 15.10.2018 to develop the suit

schedule land and submits that if any order is passed in favor of

appellant at this stage, grave prejudice would be caused to

defendants as well as to the agreement holders and their

accrued rights cannot be affected. By showing the photographs

taken on 09.02.2023, he also points out that while learned

counsel for appellant was seeking adjournments of the case

before this Court, appellant has erected boards on the suit

schedule land warning the general public as well as the

respondents from purchasing and alienating the subject land.

Therefore, the appellant is not bonafidely prosecuting the

litigation and is not entitled for any consideration.

9. Learned counsel for respondents, further contends that

when the delay is long, it is the bounden duty of the deponent to

explain in detail the reasons caused for delay and the averments

cannot be vague. In support of this contention, he placed

reliance on the following decisions:

 Majji Sannemma @ Sanyasirao Vs. Reddy Sridevi and

Others1

 Estate Officer, Haryana Urban Development Authority

and Another Vs. Gopi Chand Atreja2

 Union of India and Others Vs. M/s.Divya

Constructions, Hyderabad and Others3.

10. From the docked proceedings of this Court we have

noticed that from 10.01.2023 the matter underwent several

adjournments at request of learned counsel for appellant and on

13.03.2023 after hearing the matter for considerable time, again

at the request of learned counsel for appellant the matter was

finally adjourned to this date to produce any other medical

record to support his stand but no such medical record is filed

even now. On the contrary, learned counsel for appellant

requests for one more adjournment on the same ground. Having

regard to the adjournments already granted on the very same

ground, we declined to grant adjournment.

2022 (1) ALT(SC) 50

AIR 2019 SC 1423

2022 (4) ALT 665

11. The issue for consideration is whether the appellant has

shown sufficient cause to condone the delay of 1065 days in

filing the appeal?

12. Scope of Section 5 of the Limitation Act and scope of

power of Court to condone the delay in filing an appeal was

subject of consideration in plethora of precedent decisions of

this Court and the Hon'ble Supreme Court. Suffice to note few

land mark decisions to understand the concept of sufficient

cause.

12.1. In Perumon Bhagvathy Devasom (supra) and

N.Balakrishnan (supra), the Supreme Court considered what is

meant by 'sufficient cause' and the scope of exercising of

discretion in condoning delay.

12.2. In Maniben Devraj Shah v. Municipal Corporation of

Brihan Mumbai4, the Hon'ble Supreme Court held as under:

"14. ...The law of limitation is founded on public policy. The Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the legislature. At the same time, the courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation.

(2012) 5 SCC 157

15. The expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years this Court has advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay.

16. In Ramlal v. Rewa Coalfields Ltd. [AIR 1962 SC 361] this Court while interpreting Section 5 of the Limitation Act, laid down the following proposition: (AIR pp. 363-64, para 7)

"7. In construing Section 5 (of the Limitation Act) 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 favour 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."

17. In Collector (LA) v. Katiji [(1987) 2 SCC 107] this Court made a significant departure from the earlier judgments and observed: (SCC pp. 108-09, para 3)

"3. The legislature has conferred the power to condone delay by enacting Section 5 of the 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 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 realised 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 condoned 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 legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so....."

18. In N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123], the Court went a step further and made the following observations: (SCC pp. 127-28, paras 9, 11 & 13)

"9. 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 a want of acceptable explanation whereas in certain other cases, delay of a 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 wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court 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 untrammelled by the conclusion of the lower court.

xxx

11. Rules of limitation are not meant to destroy the rights 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. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The 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 put to litigation). Rules of limitation are not meant to destroy the rights 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.

xxx

13. 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 the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite 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."

(emphasis supplied)

12.3. On review of precedent decisions in Esha Bhattacharjee

v. Raghunathpur Nafar Academy5 the Supreme Court

summarized the principles to be applied while deciding a

condonation of delay petition as under:

(2013) 12 SCC 649

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"21. From the aforesaid authorities the principles that can broadly be culled out are

21.1. (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.

21.2. (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 fact- situation.

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4. (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.

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

21.6. (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.

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

21.8. (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 delineation.

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.

21.10. (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.

21.11. (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.

21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the

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paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -

22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard 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.

22.2. (b) 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.

22.3 (c) 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.

22.4. (d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."

(emphasis supplied)

13. From the precedent decisions, it is discernible that the

Court is vested with power to condone the delay in filing an

appeal if sufficient cause is shown by the litigant. While

assessing the reasons for delay and the quantum of delay,

Court should adopt liberal approach. It is not necessary that

person should explain every day's delay in literal sense. When

substantial justice and technical considerations are pitted

against each other cause of substantial justice should be

preserved. Any course of action adopted by the Court must

serve the ends of justice. Once the Court is convinced that

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delay is properly explained and is non-deliberate, court must

lean in favour of condoning the delay.

14. However, while exercising its discretion to condone the

delay, the Court is required to see whether delay is satisfactorily

explained; there was no deliberate, wanton delay in prosecuting

the litigation; litigant was not resorting to dilatory tactics;

whether explanation lacks bona fides of litigant. The Court

should also keep in mind the prejudice that may be caused to

decree holder. The right accrued to decree holder by lapse of

time due to his own failure to prosecute legal remedy within

reasonable time cannot be lightly ignored. When the delay is

long, as in this case, the scrutiny is rigid and burden is heavy

on the litigant to explain every aspect of his conduct and

behaviour, fairly and freely during the interregnum. Such

assertions should not be fanciful.

15. In the above backdrop, it is necessary to consider,

whether the appellant has furnished sufficient cause for the

delay of 1065 days in filing this appeal. Further, conduct of

appellant must also stand the test of bona-fides, fair and frank

submissions, not resorting to false hood, misrepresentation and

suppression.

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16. From the averments made in the affidavit filed in support

of this application, it is noticed that according to

appellant/petitioner, he entrusted the matter to a Lawyer in

March, 2016 and he was following up with his Lawyer by calling

him over his mobile phone. While, in paragraph No.7 of the

affidavit, the appellant/petitioner states that he was following

up his counsel over telephone but the appeal was not filed, in

paragraph Nos.8 and 9 he stated that in the year 2017 he tried

to contact his Lawyer whom he appointed in Hyderabad to file

the appeal but his Office was shifted to some other place and as

the phone number of Lawyer was also changed, he could

contact him only in the month of March, 2019. Thus, the

averments made in paragraph Nos.8 and 9 are contrary to what

is stated in paragraph No.7.

17. It is also noticed that though the appellant/petitioner

sought to blame the Lawyer for not filing the appeal, the details

of the Lawyer, his Office address, change of Office address and

when he tried to contact him and how he was not able to find

the Lawyer are not stated. Further, the averments made with

reference to ailment are also very vague. In paragraph No.8

though it is stated that due to chest pain he has undergone

pacemaker surgery, the averments are silent on the fact as to

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when he has undergone the surgery and what transpired

thereafter. Moreover, the medical record filed by the

appellant/petitioner contains medical reports of the years 2020

and 2021 which are not relevant for consideration of this

application. The other medical record pertains to the annual

health checkup undergone by appellant on 17.06.2016 and

another annual health checkup undergone on 11.04.2017. The

health checkup reports do not indicate any serious ailment

which he claims to have been suffering from and was

hospitalized thereon due to which the appellant/petitioner could

not prosecute his case. However, from the reading of paragraph

No.7 it is also seen that though he claimed to have been busy

with other family functions and was suffering from health

issues, he was contacting his Lawyer over telephone.

18. Thus, from the averments in the affidavit filed in support

of the I.A., it is seen that the averments are not only vague but

are also self contradictory to each other. They are not made in

fair and frank manner. Appellant tried to shield himself under

the health ground without properly explaining the nature of

ailment he was suffering during the relevant period and how his

health condition impacted prosecuting the appeal. While

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contending that he was not able to reach out to his Lawyer, he

also deposes that he was in touch with the Lawyer on phone.

19. From the over all assessment of averments in the I.A., and

the documents placed on record, we are of the considered

opinion that the appellant has not shown sufficient cause to

condone huge delay of 1065 days. The explanation lacks

bonafides.

20. As rightly contended by the learned counsel for

respondents, having waited for considerable time after the

judgment and decree, the respondents entered into the

Development Agreement-Cum-Irrevocable General Power of

Attorney on 15.10.2018. The developer must have spent

considerable amount of time and money to develop the property.

Thus, granting relief to appellant shall have adverse impact on

the development agreement and the developer and will result in

uncertain future till the appeal is disposed of. The right accrued

to the decree holder due to lapse of time cannot be ignored.

Thus, condoning the delay of 1065 days would certainly cause

prejudice to respondents for no fault of them and for clear

lapses of appellant.

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21. The I.A., is dismissed. As a corollary, A.S.No.230 of 2019

is dismissed. However, no order as to costs.

_____________________ P. NAVEEN RAO, J

_____________________________ NAGESH BHEEMAPAKA, J

Date: 24.03.2023 PT

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THE HON'BLE SRI JUSTICE P.NAVEEN RAO AND THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

I.A.No.1 OF 2019 IN/AND APPEAL SUIT No.230 of 2019

Date: 24.03.2023

PT