Telangana High Court

Mohammed Shareef vs Syed Habeebullah Husaini on 26 April, 2024

      THE HONOURABLE SRI JUSTICE SUJOY PAUL

          CIVIL REVISION PETITION No.171 OF 2024

ORDER:

In this petition filed under Article 227 of the

Constitution, petitioner has called in question the legality,

validity and propriety of order dated 28.11.2023 passed in

I.A.No.1012 of 2022 in O.S.No.821 of 2016 by the Telangana

State Wakf Tribunal at Hyderabad (for short, Tribunal),

whereby the application filed by the petitioner herein for

condonation of delay of 688 days was dismissed.

2. The petitioner herein is defendant No.2, respondent

Nos.1 and 2 herein are the plaintiffs and respondent No.3

herein is defendant No.1 in the said suit. For the sake of

convenience, the parties hereinafter shall be referred to as

they are arrayed in the said suit.

3. The background facts are that the plaintiffs filed the

said suit against the defendants for cancellation of document

and recovery of possession of the suit property. Defendant

No.2 was served with a notice issued by the Tribunal in the

said suit. Upon the same, defendant No.2 engaged a counsel,

who entered appearance in the suit proceedings. However, as

defendant No.2 did not enter appearance, the Tribunal set

him ex parte and passed ex parte order, which as per

defendant No.2 was not noted by his previous counsel

appearing in the suit proceedings. Defendant No.2 came to

know about passing of ex parte order, when the Bailiff visited

the suit property in the execution proceedings filed by the

plaintiffs. Then, defendant No.2 filed present application i.e.,

I.A.No.1012 of 2022 which came to be dismissed by the

impugned order.

4. Learned counsel for the petitioner/defendant No.2

submits that if pandemic period is excluded from 688 days,

almost 200 days will stand excluded. The remaining period of

delay cannot be treated as inordinate delay and in case of this

nature, 'liberal approach' should have been adopted by the

learned Tribunal. He further submits that the petitioner

cannot be made to suffer for the fault of his counsel, who was

representing him in the suit proceedings.

5. Per contra, learned counsel for respondent Nos.1 and

2/plaintiffs supported the impugned order of the Tribunal

and urged that the petitioner could not establish existence of

sufficient cause for condonation of inordinate delay of 688

days. The Tribunal, after considering certain judgements,

rejected the application which does not warrant any

interference by this Court.

6. The parties confined their arguments to the extent

indicated above.

7. At the outset, it can be said that delay of 688 days is

enormous in nature and the same cannot be condoned

mechanically or on mere asking. It is expected that a party

seeking condonation of delay will give justifiable explanation

constituting 'sufficient cause'. Then only, the delay can be

condoned.

8. The ex parte order was passed on 20.11.2020. It is a

matter of common knowledge that lockdown and pandemic

related prohibitions came into force from March, 2020. Even

after the period of pandemic, the petitioner did not file the

above interlocutory application with quite promptitude. There

is no explanation for this period which is related to post-

pandemic period. The singular explanation given by the

petitioner/defendant No.2 is that he engaged a counsel and

was dependant on him. If the said counsel has not appraised

him about the proceedings and the outcome, he cannot be

made to suffer. I do not see any merit in this singular

contention.

9. In S.S.P.Samiti, Maihar vs. Indrasen 1, the Madhya

Pradesh High Court held as under:

"11. ...liberal approach does not mean that the appellants who though served had any licence to disappear or to appear as per their wishes to suit their comfort or convenience."

10. In R.K. Adhwaryu vs. Parmanand 2, the Madhya

Pradesh High Court held as under:

7. ...In such premises, mere on the averments of the application that due to lack of communication from the counsel for want of knowledge of withdrawal of civil revision with some liberty, they could not file the appeal within the prescribed period could not be believed. The party is duty bound to contact the Advocate periodically to know the progress and the status of the case. In that respect if the party is negligent then on account of such negligence, the right of other party which has accrued on expiry of limitation for filing the proceeding could not be defeated and in such premises, whatsoever cause is stated by the appellants in the application, the same could not be treated to be sufficient cause as per requirement of Section 5 of the Limitation Act for condoning the alleged delay and in such premises, this application deserves to be dismissed.

1 2004 SCC OnLine MP 314 2 I.L.R. (2015) M.P., 2155

11. In Narmada Motors vs. Sunil Kumar Lauvanshi 3, the

Madhya Pradesh High Court held as under:

"...When a litigant engages an Advocate then, the Advocate who is expected to be a Court officer has to assist not only the litigant and to give advice, so that litigant may file a matter before the concerned Court as well as he has to assist the Court and therefore, it is not the duty of the Advocate to act as a servant of the litigant and inform him about the various dates of litigation to his client but, it is the duty of the litigant to remain in contact with his Advocate and to get information about the development of the case proceedings. ...If the applicant was in contact of his counsel then, certainly he could know about the status of his case, soon after its dismissal in default, an application for restoration would have been moved but, delay of 18 months in filing the restoration application indicates that in those 18 months, he did not contact his Advocate and therefore, his Advocate could not move an application for restoration in want of instructions. Hence, it is a gross mistake of the applicant and it cannot be said that it was a mistake committed by the Advocate for which the applicant shall not be punished."

12. In Ramesh Chandra Jain vs. State of M.P. 4

Narmada 5, the Madhya Pradesh High Court held as under:

"14. ...However, the concepts such as "liberal approach", "justice oriented approach", "substantial justice" cannot

4 2013 SCC OnLine MP 2490

be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. ...Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally."

13. In Balwant Singh (Dead) vs. Jagdish Singh 6, the Apex

Court held as under:

"34. ...Liberal construction of the expression "sufficient cause" is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable."

14. If the singular argument advanced by the learned

counsel for the petitioner/defendant No.2 is mechanically

accepted, in every case when ex parte order is passed, similar

defence may be advanced. The Madhya Pradesh High Court

in Chairman H.L. Ltd. vs. M/s. Heera Agencies 7 followed

the aforesaid judgments.

6 (2010) 8 SCC 685 7 I.L.R.(2017) M.P. 3015

15. The scope of interference under Article 227 of the

Constitution is limited. Interference can be made if order

impugned is patently illegal or suffers from palpable

procedural impropriety. Another view is possible, is not a

ground for interference {See Shalini Shyam Shetty vs.