Telangana High Court
Dasari Venkatesh Died vs Mandal Revenue Officer on 2 August, 2024
THE HONOURABLE SRI JUSTICE SUJOY PAUL
CIVIL REVISION PETITION Nos.2084, 2088, 2247
and 2362 of 2024
COMMON ORDER:
Heard Ms. Zainab Khan, learned counsel for the petitioners,
finally. None for the respondents despite of service of notice.
2. Since all the Civil Revision Petitions are arising out of
C.M.A.No.19 of 2020 on the file of I Additional Chief Judge, City
Civil Court, Secunderabad (Court below), the matters are argued,
heard and decided by way of this Common Order.
3. These Civil Revision Petitions are filed challenging the orders
dated 06.02.2024 in I.A.Nos.1808 to 1810 of 2023 and
C.M.A.No.19 of 2020 respectively on the file of the Court below,
whereby the applications filed by the petitioners seeking (i)
condonation of delay of 704 days in filing the applications to bring
the legal representatives of the deceased appellant on record, (ii) to
set aside the abatement caused due to the death of the deceased
and (iii) to bring legal representatives of the deceased on record,
were rejected by the Court below. Consequent to dismissal of the
aforesaid applications, the Court below also dismissed the Civil
Miscellaneous Appeal No.19 of 2020.
4. The husband of the petitioner No.1 herein and father of
remaining petitioners i.e., appellant in C.M.A.No.19 of 2020 before
the Court below filed O.S.No.5 of 2020 along with application in
I.A.No.3 of 2020 under Order XXXIX Rules 1 and 2 of the Civil
Procedure Code, 1908 (CPC) on the file of XI Junior Civil Judge,
City Civil Court, Secunderabad and the said Court rejected the
said application by order dated 05.08.2020. Aggrieved, the
original plaintiff i.e., the appellant before the Court below
preferred appeal on 29.09.2020, which was registered as
C.M.A.No.19 of 2020 on the file of Court below. On 29.09.2020,
the Court below granted injunction in favour of the appellant. On
15.12.2021, the appellant/original petitioner died. The present
petitioners preferred applications for condonation delay, setting
aside abatement and substitution of legal representatives on
17.02.2023. The application for condone delay was rejected by
impugned order dated 06.02.2024 in I.A.No.1808 of 2023 by the
Court below. Since delay was not condoned, the other
applications filed for substitution of legal representatives and
setting aside abatement were also dismissed.
5. Learned counsel for the petitioners submits that the
impugned order dated 06.02.2024 shows that the petitioners'
argument was that the petitioners counsel did not pursue the
matter. In that case, as per Court below's observation, the
petitioners were supposed to be vigil while prosecuting the matter.
If their counsel did not file substitution of legal representatives'
petition, the petitioners could have changed their advocate. Apart
from this, since day-to-days delay is not explained, the application
was dismissed.
6. Learned counsel for the petitioners submits that this aspect
has been dealt with by the Supreme Court in the case of
Collector, Land Acquisition, Anantnag vs. Mst. Katiji 1. The
principles laid down in the said judgment were consistently
followed by the Supreme Court in the catena of cases (i) N.
Balakrishnan vs. M. Krishnamurthy 2, Ram Nath Sao vs.
Gobardhan Sao 3, Raheem Shah vs. Govind Singh 4 and Rafiq
vs. Munshilal 5.
7. Heard the learned counsel for the petitioners at length.
None entered appearance for the respondents, despite service of
notices.
(1987) 2 SCC 107
(1998) 7 SCC 123
(2002) 3 SCC 195
2023 SCC OnLine SC 910
(1981) 2 SCC 1978
8. The Apex Court in the case of Mst. Katiji (supra) opined as
under:
"3. The legislature has conferred the power to condone delay by
enacting Section 51 of the Indian 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 meaning- ful 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 realized 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
con-doned 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 legalize injustice on technical
grounds but because it is capable of removing injustice
and is expected to do so.
Making a justice-oriented approach from this perspective, there
was sufficient cause for condoning the delay in the institution of
the appeal."
(Emphasis Supplied)
9. In other judgments, the Apex Court consistently followed the
said view. Still it is profitable to refer to the relevant portion of
judgment in the case of Ram Nath Sao (supra), which reads as
under:
"8. In the case of Sital Prasad Saxena (dead) by Lrs. v. Union
of India and others {AIR 1985 Supreme Court 1}, the Court
was dealing with a case where in a second appeal, appellant
died and application for substitution after condonation of
delay and setting aside abatement filed after two years by the
heirs and legal representatives was rejected on the ground
that no sufficient cause was shown and the appeal was held
to have abated. When the matter was brought to this Court,
the appeal was allowed, delay in filing the petition for setting
aside the abatement was condoned, abatement was set aside,
prayer for substitution was granted and High Court was
directed to dispose of the appeal on merits and while doing
so, it was observed that once an appeal is pending in the
High Court, the heirs are not expected to keep a constant
watch on the continued existence of parties to the appeal
before the High Court which has a seat far away from where
parties in rural areas may be residing inasmuch as in a
traditional rural family the father may not have informed his
son about the litigation in which he was involved and was a
party. It was further observed that Courts should recall that
"what has been said umpteen times that rules of procedure
are designed to advance justice and should be so interpreted
and not to make them penal statutes for punishing erring
parties."
(Emphasis Supplied)
10. There is glaring similarity in the present case with the above
case of Supreme Court. Pertinently, the delay was two years for
filing condone delay application before the Apex Court and yet the
Court in clear terms opined that it is not expected from the family
members of the appellant to give explanation of delay of day to day
and be vigilant about the litigation. Apart from this, a conjoint
reading of the judgments in the case of Mst. Katiji and Ram Nath
Sao (both supra) makes it clear that petitioners were under no
obligation to explain each day's delay separately. Broadly, they
assigned reasons in their application and one such reason is that
their counsel was not vigilant and therefore, they even changed
their counsel. In other judgments (supra) also the Supreme Court
has taken a similar view.
11. All the reasons assigned by the Court below cannot sustain
judicial scrutiny on the touch stone of the principles laid down by
the Supreme Court in aforesaid judgments. Thus, the impugned
order cannot get the stamp of approval from this Court.
12. Resultantly, the orders dated 06.02.2024 impugned in all
the Civil Revision Petitions are set aside. Since the other
interlocutory applications were rejected based on the order dated
06.02.2024 in I.A.No.1808 of 2023, the said orders are also set
aside. In the opinion of this Court, sufficient cause has been
shown for condonation of delay. Accordingly, I.A.No.1808 of 2023
is allowed and other applications i.e., I.A.Nos.1809 and 1810 of
2023, filed for setting aside of abatement and substitution of legal
representatives of the deceased appellant are also allowed. The
order dated 06.02.2024 dismissing the main case i.e.,
C.M.A.No.19 of 2020 is also set aside and the C.M.A is restored to
its file. The Court below shall proceed from this stage.
13. With the aforesaid, the Civil Revision Petitions are disposed
of. There shall be no order as to costs. Miscellaneous
applications pending, if any, shall stand closed.
_______________________
JUSTICE SUJOY PAUL
Date: 02.08.2024
GVR
