E. Govinda Raj vs Baddampratap Reddy And 15Others
2023 Latest Caselaw 2827 Tel

              HON'BLE SRI JUSTICE K.SARATH

     CIVIL REVISION PETITION No.2954 OF 2022

ORDER:

1. This Civil Revision Petition under Article 227 of

Constitution of India is filed challenging the order

dated 06.09.2022 passed in I.A.No. 104 of 2020 in O.S.

No.296 of 2001 on the file of Additional Senior Civil

Judge, Ranga Reddy District at Ibrahimpatnam.

2. The respondent No.1 herein filed suit O.S.No.296

of 2001 on the file of Senior Civil Judge,

Ibrahimpatnam initially against the respondents 2 to

5 herein for specific performance of the Agreement of

Sale dated 07.04.2000, in which some of the

defendants filed their written statements and some of

the defendants remained ex parte. The said suit was

decreed ex parte on 20.01.2020. The petitioner, who is

the arrayed defendant No.9, filed an application in

I.A.No.104 of 2020 under Section 5 of Limitation Act to

SK,J CRP NO.2954 of 2022

condone the delay of four (4) days in filing the

application to set aside the decree dated 20.01.2020

and the said application was dismissed by the Court

below, on contest, through impugned order dated

06.09.2022. Being aggrieved by the same the present

revision is filed.

3. Heard the learned Counsel for the

petitioner/defendant No.9 and the learned Counsel for

the respondent No.1/plaintiff.

4. The learned Counsel for the revision petitioner

submits that the Court below ought to have seen that

the reasons stated by the petitioner herein in his

affidavit filed in support of the petition in I.A.No.104 of

2020 are cogent and ought to have condoned the delay

of four (4) days. Originally the suit was filed on the

file of II-Additional Senior Civil Judge, Ranga Reddy

District at L.B.Nagar and subsequently it was

transferred to Additional Senior Civil Judge, Ranga

SK,J CRP NO.2954 of 2022

Reddy District at Ibrahimpatnam in the year 2017,

where it was numbered as O.S.No.296 of 2001. The

petitioner contending that after transfer of the suit the

Counsel for the petitioner informed the petitioner that

no date was given and after giving the date the same

will be intimated to the petitioner. In the month of

February, 2020 when the petitioner approached his

counsel, he was informed that the court passed

judgment and decree on 20.01.2020 against the

petitioner and others and immediately he filed the

petition in I.A.No.115 of 2020 under order IX, Rule-13

of Civil Procedure Code to set aside the ex parte decree

dated 20.01.2020 along with the delay condonation

petition in I.A.No.104 of 2020 under Section 5 of

Limitation Act and the Court below not considered the

facts and beyond the scope of the petition dismissed

the petition and requested to allow the Civil Revision

Petition, by setting aside the impugned order.

SK,J CRP NO.2954 of 2022

5. The learned Counsel for the petitioner in support

of his contention placed reliance on the following

Judgment:

Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others 1

6. On the other hand the learned Counsel appearing

for the respondent No.1/plaintiff contends that the

affidavit of chief-examination of the plaintiff /PW1 was

filed on 22.06.2016 and exhibits were marked therein

on 10.07.2016, thereafter the matter was adjourned to

05.09.2019 for cross-examination of PW1 and on the

said date as none appeared for the defendants 1 to 3,

10 to 16, the cross-examination of PW1 was recorded

Nil. In spite of several opportunities given to the

defendants Nos.6 and 9 till 19.08.2019, they did not

choose to cross-examine PW1, therefore the

cross-examination of PW1 was recorded Nil.

Thereafter, PW2 filed his affidavit of chief-examination

(2013) 12 SCC 649

SK,J CRP NO.2954 of 2022

and as none of the defendants appeared to cross-

examine PW2 his cross-examine was also recorded Nil

and closed the evidence of the plaintiff and thereafter

the matter was posted for the evidence of the

defendants. Since none appeared for the defendants,

the evidence of the defendants was closed and matter

was posted for arguments, and thereafter the suit was

decreed ex parte on 20.01.2020.

7. The learned Counsel for the respondent No.1

further submits that, nothing is whispered in the

petition about the alleged GPA holder of the

petitioner/defendant No.9 and straight away filed the

present petition. There is no bar to the

petitioner/defendant No.9 to file the petition on his

own, but the written statement filed by his GPA holder

is without any permission of the Court as required

under Rule-32 and 33 of Civil Procedure Code and

hence the pleas taken by the petitioner are not tenable

SK,J CRP NO.2954 of 2022

and only after depositing the balance sale

consideration amount by the plaintiff, the petitioner

filed I.A.No.104 of 2020 in O.S.No.296 of 2001 and

there are no merits in the petition and requested to

dismiss the civil revision petition.

8. After hearing both sides and perusing the record

this Court is of the considered view that the

petitioner/defendant No.9 filed in I.A.No.104 of 2020 in

O.S.No.296 of 2001 under Section 5 of the Limitation

Act to condone the delay of four (4) days in filing the

application to set aside the decree dated 20.01.2020

passed in the suit and the said petition was dismissed

by the Court below through impugned order.

9. The petitioner is the defendant No.9 in the suit

and the same was decree ex parte on 20.01.2020. The

suit was filed by the respondent No.1/plaintiff for

specific performance of agreement of Sale dated

07.04.2000 against the petitioner and others in respect

SK,J CRP NO.2954 of 2022

of the suit schedule property. The petitioner has filed

his written statement on 22.01.2009 through GPA

holder. Originally the suit was filed on the file of

II-Additional Senior Civil Judge, Ranga Reddy District

at L.B.Nagar and subsequently it was transferred to

Additional Senior Civil Judge, Ranga Reddy District at

Ibrahimpatnam in the year 2017, where it was

numbered as O.S.No.296 of 2001. The petitioner

contending that after transfer of the suit, the Counsel

for the petitioner informed the petitioner that no date

was given and after giving the date the same will be

intimated to the petitioner. In the month of February,

2020 when the petitioner approached his counsel he

was informed that the court passed judgment and

decree on 20.01.2020 against the petitioner and others

and immediately he filed the petition in I.A.No.115 of

2020 under order IX, Rule-13 of Civil Procedure Code

to set aside the ex parte decree dated 20.01.2020

SK,J CRP NO.2954 of 2022

along with the delay condonation petition in I.A.No.104

of 2020 under Section 5 of Limitation Act.

10. The Court below without taking into account of

the averments in the delay condonation petition, given

the finding beyond the scope of the petition and held

that "the question of leading evidence by the

petitioner/defendant No.9 does not arise as there were

no pleadings on his behalf as no permission is sought

from the court to file the written statement by the

G.P.A holder and at the most he can cross-examine

PWs.1 and 2 but the same was not availed by the

petitioner and only after depositing the balance sale

consideration by the plaintiff the present petition is

filed to condone the delay and another petition under

Order-IX, Rule-13 of CPC". But no reason was given

by the Court below in rejecting the petition to condone

the delay of four (4) days. It is settled law that there

should be liberal and pedantic approach while dealing

SK,J CRP NO.2954 of 2022

with the applications for condonation of delay and the

courts are not supposed to legalize injustice on

technical grounds as it is the duty of the court to

remove injustice.

11. The judgment relied on by the learned Counsel in

Esha Bhattacherjee Vs. Managing Committee of

Raghunathpur Nafar Academy and others (supra)

squarely apply to the facts of the instant case and the

delay of four (4) days has to be condoned. The finding

given by the Court below in I.A.No.104 of 2020 in

O.S.No.296 of 2001 is beyond the scope of the petition

and the same is liable to be set aside.

12. In view of the above finding, the impugned order

dated 06.09.2022 passed in I.A.No.104 of 2020 in

O.S.No.296 of 2001 is hereby set aside and

consequently, the said I.A No.104 of 2020 in

O.S.No.296 of 2001 stands allowed.

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13. Miscellaneous petitions, if any pending in this

revision, shall stand closed. There shall be no order

as to costs.

_____________________ JUSTICE K. SARATH Date:03.10.2023 trr