Telangana High Court

Ganamaina Kanakaiah vs Ganamaina Prasad on 15 March, 2024

Author: P.Sree Sudha

Bench: P.Sree Sudha

      HONOURABLE SMT. JUSTICE P.SREE SUDHA

                    C.R.P.No. 6720 of 2018

ORDER:

This revision is filed against the order, dated

27.08.2018, passed by the learned VI-Additional District

Judge, Siddipet, in I.A.No.663 of 2017 in A.S.No. Nil of 2017.

2. Revision petitioner (Defendant No.1) filed the

aforesaid application under Section 5 of Limitation Act

seeking to condone the delay of 1240 days in preferring the

appeal against the judgment and decree passed in

O.S.No.59 of 2007, dated 29.04.2014, on the file of Principal

Junior Civil Judge, Siddipet.

3. The appellate Court, on Consideration of the entire

material available on record, held that there is no sufficient

cause to condone the delay of 1240 days in preferring the

appeal and accordingly dismissed the application.

PSS, J CRP No.6720 of 2018

4. Aggrieved by the aforesaid order, the revision

petitioner/defendant No.1 filed the present revision

contending that the appellate Court failed to appreciate that

the revision petitioner herein, who is not well conversant

with the procedure and having been cheated by one

K.Narasimha Reddy, could not examine himself and also

could not led any evidence to support his case. It is further

contended that he came to know about the decreeing of the

suit when he received a notice in an application for

appointment of commissioner and as such the delay was

caused, which is neither wilful nor wanton. Therefore, he

requested the Court to allow the revision by setting aside

the order of the appellate Court.

5. Heard both sides and perused the entire material

placed on record.

6. Respondents 1 to 4 herein filed the suit being

O.S.No.59 of 2007 against the revision petitioner and

respondents 5 to 8 herein for partition of the suit schedule PSS, J

property into three equal shares with metes and bounds and

to allot one such share to the plaintiffs and also to appoint

an advocate commissioner to ascertain the mesne profits

derived from the plaint schedule property and to deliver

1/3rd share to the plaintiffs. Revision petitioner/D1 filed

written statement denying the claim of the plaintiffs.

Defendants 2 to 4 remained ex parte. It was observed in the

judgment of the trial Court that though defendant No.1

pleaded in his written statement that suit schedule

properties were already partitioned in between father of the

plaintiffs, himself and defendant No.2, he has not filed any

oral or documentary evidence to prove his contention and

as such the plea of defendant No.1 was not considered.

Accordingly, the suit was decreed preliminarily on

29.04.2014 for dividing the properties into three equal

shares with metes and bounds.

7. Petitioner herein contended that after receiving

summons in the suit, he engaged an advocate Sri L.Saibaba, PSS, J

with the help of one Kurella Narasimha Reddy, and filed

vakalat and written statement on his behalf, but he never

contacted the said advocate on the advice of said Narasimha

Reddy. He further contended that whenever he asked the

said Narasimha Reddy, he used to state that the suit is

pending even after receiving money continuously from him

for giving it to the advocate. He further contended that he

came to know about the decreeing of the suit when he

received a notice in an application for appointment of

advocate commissioner. He further contended that due to

misguiding and cheating of the mediator, he did not attend

the Court and adduce evidence on his behalf.

8. When once the revision petitioner/D1 engaged an

advocate, it is for him to approach the advocate directly and

pursue the litigation properly, but he failed to do so. A

written statement has been filed on behalf of defendant

No.1, but he did not adduce evidence either oral or

documentary.

PSS, J

9. Learned Counsel for the revision petitioner relied

upon a decision of Allahabad High Court in Ramesh

Chandra Objector v. Seth Ghanshiam Das 1, wherein it was

held as follows:

"12. A decree is defined in S.2 (2), Civil P.C. as "the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit." This may be either preliminary or final or partly preliminary or partly final. A decree is preliminary when further proceedings have to be taken when the suit can completely be disposed of."

10. He also relied upon a decision of the Supreme Court

in Raheem Shah and others vs. Govind Singh and others 2,

wherein it was held as under:

"The legislature has conferred the power to condone delay by enacting Section 5 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 meaningful manner which

AIR 1955 ALLAHABAD 552

MANU/SC/0829/2023 PSS, J

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 condoned 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.

PSS, J

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."

11. He also relied upon a decision of the Supreme Court

in Sheo Raj Singh (Deceased) through Legal Representatives

and others vs. Union of India and another 3, wherein it was

held as under:

"Expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay."

12. In this case, the main contention of the revision

petitioner/D1 is that he entrusted the matter to the

mediator, K.Narasimha Reddy, and whenever he contacts

the mediator to know the stage the case, he misguided him

and also cheated him saying that the suit is pending. In

(2023) 10 Supreme Court Cases 531 PSS, J

fact, the mediator advised the revision petitioner not to

contact the advocate and as such he could not directly

contact the advocate. He further contended that partition of

the suit schedule properties was already done long back

among the brothers during the lifetime of their father and

that father of the plaintiffs got his share and that no