Telangana High Court

Patlolla Buchi Reddy, vs Patlolla Bhupal Reddy on 19 September, 2023

Bench: K. Sarath

      THE HONOURABLE SRI JUSTICE K. SARATH

      CIVIL REVISION PETITION No.3026 of 2022

ORDER

Heard the learned counsel for the petitioner and

the learned counsel for the 1st respondent.

2. This Civil Revision Petition is filed against the

order dated 17.08.2022 in I.A.No.673 of 2018 in

O.S.No.27 of 2008 on the file of the Senior Civil Judge-

cum-Assistant Sessions Judge, Sangareddy whereby

the petition filed under Section 5 of the Limitation Act

was allowed.

3. The petitioner and the 1st respondent are brothers

and the 1st respondent filed suit in O.S.No.27 of 2008

on the file of the Senior Civil Judge at Sangareddy for

partition and separate possession. The petitioner filed

written statement and after the issues were framed,

the 1st respondent has filed evidence affidavit

on 27.07.2009 and when the suit was posted on

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19.08.2009 for cross-examination of P.W.1, the

plaintiff was absent. At that stage, the suit was

dismissed for default on 18.03.2014. Thereafter, the 1st

respondent herein filed I.A.No.673 of 2018 under

Section 5 of the Limitation Act to condone the delay of

1464 days in filing the petition under Order IX Rule 9

read with Section 151 C.P.C. for setting aside the order

dated 18.03.2014 and to restore the suit to its original

file. The petitioner/defendant No.1 filed counter in the

said I.A. and requested to dismiss the petition.

4. After hearing both sides, the Court below allowed

the petition and held that the suit was at the stage of

trial and the evidence of plaintiff was in progress and

in order to give an opportunity to contest the suit on

merits and for effectual disposal of the suit. Aggrieved

by the same, the petitioner/defendant No.1 filed the

present Civil Revision Petition.

SK, J C.R.P.No.3026 of 2022

5. Learned counsel for petitioner submits that in

spite of granting several adjournments, the

respondent/plaintiff never come forward to proceed

with the trial of the suit and also failed to pay the costs

imposed by the Court below on 18.03.2014, however

the Court below without any justifiable grounds has

condoned the inordinate delay of 1464 days in filing

the petition for restoration of the suit and requested to

allow the Civil Revision Petition.

6. Learned counsel has relied on the following

judgments;

1. B. Madhuri Goud vs. B. Damodar Reddy 1

2. Mettu Srinivasa Reddy v. Mettu Neelamma (died) per L.Rs and others 2

3. Kodiganti Jagapathi Reddy v. Kodiganti Bhaskar Reddy 3

4. B. Hanmaiah v. Pittala Rajalingu and others 4

(2012) 12 SCC 693

2019(6) ALD 256 (TS)

2022(6) ALD 470 (TS)

SK, J C.R.P.No.3026 of 2022

5. Kilaru Appa Rao v. Sunku Prathapa Reddy 5.

6. Jampala Poornananda Venkateswara Prasad v. Roshini Chit Funds and Finance Private Limited and others 6.

7. Learned counsel for the respondent submits that

the suit for partition filed by the 1st respondent is a

continuous cause of action. He submits that it is

settled law that the second suit can be filed for

partition in spite of the first suit was dismissed for

default and the trial Court has rightly allowed the I.A.

on the ground that suit was only at the stage of trial

and the evidence of the plaintiff was in progress and to

give an opportunity to adjudicate the suit on merits

and for effectual disposal. Once the Court accepts the

explanation is sufficient as it is the result of positive

exercise of discretion and the same cannot be

interfered in the revision petition. He further submits

that there are no valid grounds to interfere with the

2022(5) ALD 685 (TS)

2022(6) ALD 458 (TS)

2021(2) ALD 183 (AP)

SK, J C.R.P.No.3026 of 2022

impugned order and the present revision is liable to be

dismissed.

8. Learned counsel for the respondent No.1 has

relied on the following judgments;

1. N. Balakrishnan vs. M. Krishnamurthy 7.

2. Mir Mohsin Mohiuddin Ali Khan v. Mohd. Jani 8.

3. Vinod Kumar v. Lalit Kumar 9

9. After hearing both sides and perused the record,

this Court is of the considered view that the petitioner

and the 1st respondent are brothers. The 1st

respondent filed suit in O.S.No.27 of 2008 for partition

of the suit schedule property for equal shares with

metes and bounds and the petitioner filed written

statement and issues were framed. Thereafter, when

the evidence was in progress, due to the absence of the

1st respondent, the suit was dismissed for default.

Then the 1st respondent filed I.A.No.673 of 2018 with a

(1998) 7 SCC 123

2022(5) ALD 57 (TS)

2010 SCC Online J & K 327

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delay of 1464 days for restoring the suit and the same

was allowed by the Court below on the ground that the

suit was only at the stage of trial and the evidence of

the plaintiff was in progress and to give an opportunity

to adjudicate the suit on merits and for effectual

disposal of the suit.

10. The contention of the petitioner is that the 1st

respondent has failed to appear before the Court

below for adducing his evidence in spite of granting

several adjournments and without any justifiable

grounds, the Court below has condoned the

inordinate delay of 1464 days in filing the petition

for restoration of the suit. The judgments relied on

by the petitioner i.e. Mettu Srinivasa Reddy's case

(cited 2 supra), Kodiganti Jagapathi Reddy's case

(cited 3 supra), B. Hanmaiah's case (cited 4 supra),

Kilaru Appa Rao's case (cited 5 supra) and Jampala

Poornananda Venkateswara Prasad's case (cited 6

supra) are not apply to the instant case as the said

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judgments are not pertaining to the suit for

partition.

11. In the instant case, the Court below has allowed

the condone delay petition. Whereas the judgments

relied on by the 1st respondent are apply to the instant

case. The Honourable Supreme Court in N.

Balakrishnan' case (cited 7 supra) has categorically

held that 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.

The relevant paragraph of the judgment in N.

Balakrishnan's case (cited 7 supra) is as follows;

"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 want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the

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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 reversional jurisdiction, unless the exercise of discretion was on whole 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".

12. The judgment relied on by the learned counsel

for the petitioner in B. Madhuri Goud's case (cited 1

supra), and in the said judgment the Apex Court has

also considered N. Balakrishnan's case (cited 7

supra) and held that no hard and fast rule has been

or can be laid down for deciding the application for

condonation of delay.

13. Para 6 of B. Madhuri Goud's Case (cited

1supra) is as under:

"6. 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

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can be laid down for deciding the applications for condonation of delay but over the years Courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay".

14. In the instant case, the suit is filed for partition

and the dismissal of the suit for default is for non-

appearance of the parties does not apply a bar against

the subsequent suit for partition. In view of the same,

the Court below has rightly allowed the condone delay

petition for restoration of the suit.

15. In Vinod Kumar's case (cited 9 supra), the High

Court of Jammu and Kashmir held that a bar under

Order 9 Rule 9 C.P.C, which precludes the plaintiff in a

suit, which was dismissed for default, from filing a

fresh suit of same cause of action will not apply to a

suit for partition. The cause of action of suit is a