Telangana High Court

Vipul Garg vs Yeshokiran Residency Owners ... on 8 September, 2023

Bench: Sambasivarao Naidu

  THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU

 CIVIL REVISION PETITION Nos.459 OF 2021 AND 481
                      2022


COMMON ORDER :


            Being aggrieved by a common order of the learned

Principal District and Sessions Judge, Warangal in two

interlocutory applications in an unregistered appeal suit

vide I.A.No.1200 of 2019 and 1204 of 2019 dated

10.11.2021 whereunder the Court below allowed the

interlocutory       applications,   condoning   the   delay    in

preferring the appeals by the petitioners/defendants, these

two revision petitions have been filed by the petitioner who

is respondent in the above said interlocutory applications

and plaintiff in the main suit. The petitioner herein has

filed a suit vide O.S.No.809 of 2010 against the

respondents herein for declaration of title and respondents

herein have filed O.S.No.496 of 2007 for perpetual

injunction to restrain the petitioner herein from interfering

with the agricultural lands bearing Sy.No.771, 772 and

773 admeasuring Ac.6-27 gts., of Ramannagudem Village.

Both the suits were clubbed and the learned II Additional

CRP Nos.459 AND 481 of 2021

Senior Civil Judge conducted joint trial and disposed both

the suits by a common judgment dated 21.06.2018. The

suit filed by the petitioner herein vide O.S.No.809 of 2010

was decreed and suit filed by the respondent vide

O.S.No.496 of 2007 was dismissed (the trial was conducted

by the Court below in O.S.No.496 of 2007).

2. Being aggrieved by the above said common

judgment, the respondents herein sought to file two appeal

suits, but as there was delay of 253 days in filing the

appeal, they have filed I.A.No.1200 of 2019 and 1204 of

2019 under Order 41 Rule 3(a) C.P.C. with a prayer to

condone the delay of 235 days in filing the appeal.

3. The learned District Judge disposed both the

petitions vide a common order dated 10.11.2021 and

allowed the petitioner subject to payment of Rs.500/- to

the petitioner who is respondent in the above said

petitions. Being aggrieved by the said order, the petitioner

filed two civil revision petitions vide C.R.P.Nos.459 of 2022

and 481 of 2022. Even though two separate petitions are

filed, the contentions of the petitioner in both petitions is

one and the same. The following are the grounds on which

CRP Nos.459 AND 481 of 2021

the petitioner sought to set aside the above referred

common order:

4. The petitioner has claimed that the Court below

ought to have scrutinized the veracity of the reasons given

by respondents for condoning the delay. The Court below

ought to have seen that the respondents could not explain

day to day delay, thereby they are not entitled to the relief

claimed in the petitions.

5. The petitioner has claimed that the Court below

ought not to have believed the medical certificate produced

by the respondents in support of their contention since

there was no proper verification with regard to the ailments

referred and the treatment provided to the respondents.

The petitioner has contended that the respondents filed

petition seeking condonation of delay on the ground that

the husband of the 1st respondent used to look after the

affairs of the suit, but it is blatant lie since the husband of

the 1st respondent died during 2013. Thereafter, the suit

proceedings including the production of evidence is looked

after by the 1st respondent. The petitioner further claims

that even if it is believed that the 1st respondent was

CRP Nos.459 AND 481 of 2021

suffering from ill health, the other respondents ought to

have taken care of the suit proceedings. He has also

claimed that when he approached the Court below for

police aid, the respondents herein have filed the appeal

along with delay condonation petition as counterblast to

his contention. But, there are no bonafidies in the context

of the respondents, thereby he prayed for dismissal of the

application filed by the respondents.

6. Heard both parties.

7. Now the point for consideration is:

Whether the Court below failed to appreciate the contentions of both parties and an irregular order? If so, whether it is liable to be set aside?

8. POINT

As could be seen from the record I.A.No1200 of 2019

and I.A.No.1204 of 2019 are filed by 4 petitioners who are

shown as respondents in the present revisions. In support

of the petitions the 1st respondent herein filed her affidavit,

stating that the trial Court failed to appreciate their

evidence and dismissed their suit without considering their

CRP Nos.459 AND 481 of 2021

claim. The respondents have claimed that the husband of

1st respondent herein used to look after the suit

proceedings and after his death the 1st respondent was

taking care of the case` because the other respondents

were already married and pre-occupied with their

respective professions. The 1st respondent fell sick from

August, 2018, thereby she took medical assistance from

Dr.A.Sarvesham who advised the 1st respondent to take

bed rest for quite a long time. She has obtained medical

certificate from the said doctor and further submitted that

soon after the recovery, she approached her counsel and as

per the instructions of the Advocate, she filed the above

referred interlocutory application for condoning the delay.

9. The petitioner herein opposed the petitions. The

Court below having considered the rival contentions of

both parties allowed the petitions by a common order. The

learned District Jude having extracted the contentions of

both parties on to the order and opined that as per the

prescription filed by the 1st respondent it indicates that she

was sick and she was provided medicines by the Doctor.

Though the petitioner herein vehemently opposed the

CRP Nos.459 AND 481 of 2021

medical certificate and prescriptions. However, the Court

below opined that if the petitioner herein intend to queston

the medical certificate, he has got a chance to summon the

doctor and examine him and as the prescription show the

medicines provided, and as respondent No.1/petitioner,

she has got good grounds to succeed in appeal, allowed the

petition on costs of Rs.500/-.

10. The learned counsel for the petitioner herein has

submitted that in view of abnormal delay in filing the

appeal and it is for the respondents to explain each days

delay before the lower appellate Court. They did not explain

the delay but filed a medical certificate obtained from an

unqualified self-styled medical officer. The Court below

having placed the entire burden on the petitioner, simply

allowed the petitions by observing that the petitioner if

aggrieved by the contentions of the respondents, could

have filed an application for summoning the medial officer

for his cross examination which is unknown to law. When

once the respondent wanted to prefer appeal and file delay

condone petition, it is for them to establish and satisfy the

delay by explaining cogent reasons. Even if the medical

CRP Nos.459 AND 481 of 2021

certificate issued by unqualified doctor is taken into

consideration, still there is a delay in filing the appeal

which was not explained by the respondents, thereby

sought for setting aside the order.

11. In support of the claim, the petitioner herein filed the

photocopy of the medical certificate which was filed by the

respondents before the Court below. According to the

medical certificate and prescription, the certificate was

issued by one Dr.A.Sarvesham, B.A.M.S who claims to be a

physician and surgeon. In fact, the qualification of the

Medical Officer clearly shows that he did Bachelor of

Ayurvedic Medical Sciences who cannot be considered as a

medical doctor. The certificate issued by the said

Dr.A.Sarvesham indicates that the 1st respondent was

suffering from Hemiplegia from 08.10.2018 to 25.12.2018

and she was fit from 10.01.2019. Even, if this medical

certificate is accepted to be true and correct, the

respondents field the above stated interlocutory application

on 22.04.2019. There is no explanation for the delay in

filing the appeal. Even if this Court considered the medical

certificate as a genuine one, still the respondents are under

CRP Nos.459 AND 481 of 2021

obligation to explain the delay in filing the appeal from

10.01.2019 till 22.04.2019. As rightly argued by the

counsel for the petitioner, apart from the 1st respondent

there are 3 more adult persons shown as respondents and

there is no explanation form their side as to whey they

could not prefer appeal against the judgments decided

against them. The learned District Judge simply throwing

the entire burden on the petitioner herein, allowed the

petition only on the ground that the respondents claimed

to have good grounds for winning the appeal. If really they

have got good ground, they could have filed the appeal

within the time and in the absence of any acceptable

reasons for the delay even from January, 201+9 till April,

2019 the Court below ought not to have allowed the

petitions.

12. Learned counsel for the portioner placed reliance on

a judgment between Lingeswaran vs Thirunagalingam 1

wherein the Hon'ble Apex Court was pleased to observe

that the "The Court has no power to extend period of

limitation on equitable grounds and when once it is found

1 2022 2 RCR CIVIL 319

CRP Nos.459 AND 481 of 2021

that delay was not properly explained even no merits in

application for condonation of delay, the Court shall not

condone the delay and set aside the exparte decree.

13. In the above referred judgment, the Hon'bele Apex

Court referred another judgment between Maniban

Devaraj Shaw vs Municipal Corporation of Brihan

Mumbai2 wherein it was observed as follows:

"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 right 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."

14. In the case on hand the contention of the

respondents that husband of 1st respondent was looking

after the case and in view of his death, the respondents

2 2012 5 SCC 157

CRP Nos.459 AND 481 of 2021

could not take steps proved to be false because the

husband of the 1st respondent died way back in 2013. The

medical certificate produced by the 1st respondent is

nothing but a fake documents obtained may be by

influencing the above referred unqualified doctor. Even, if

that particular medical certificate is accepted, still the

delay from 10.12.2019 to 22.04.2019 is not explained.