T. Laxmi Bai vs Imtiyaz Hussain
2025 Latest Caselaw 5014 Tel

Telangana High Court

T. Laxmi Bai vs Imtiyaz Hussain on 23 April, 2025

HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

         CIVIL REVISION PETITION No.3239 OF 2024

ORDER:

This Civil Revision Petition is filed assailing the order,

dated 18.07.2024, passed by the Junior Civil Judge at Suryapet in

I.A.No.171 of 2022 in OS.No.89 of 2014.

2. Heard Sri P.Lakshma Reddy, learned counsel for the

revision petitioners, and Sri S.Prasad Babu, learned counsel for

respondent.

3. The revision petitioners are plaintiffs and respondent is

defendant in the suit. For convenience, the parties will be

hereinafter referred to as arrayed in the suit.

4. The brief factual matrix of the case required for adjudication

of the present case, is that the plaintiffs filed suit in OS.No.89 of

2014 for perpetual injunction against the defendant in respect of

the suit schedule property and the said suit was dismissed for

default on 15.02.2019. Subsequently, an application in IA.No.171

of 2022 was filed under Section 5 of the Limitation Act praying the

Court to condone the delay of three (3) years and 28 days in filing

the application to set aside the dismissal order. The said application

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came to be dismissed by the trial Court. Aggrieved by the same,

the present Revision Petition is filed.

5. In the affidavit, filed in support of their application, the

revision petitioners/plaintiffs averred that they were represented

by one Sri S.Jayachander Rao, advocate, before the trial Court; that

the said counsel was suffering from cancer and ultimately, due to

serious illness on being attacked by Corona virus, he died in the

Month of May, 2021; that plaintiff Nos.2 to 5, who are the married

daughters of plaintiff No.1, came to know about the said fact on

20.02.2022 and further, on 25.02.2022, they came to know about

the dismissal of the suit for default; that immediately, they filed an

application seeking to condone the delay that occurred in filing the

application to set aside the dismissal order; and therefore, the delay

that occurred is neither intentional nor wanton and accordingly,

prayed to condone the same.

6. Learned counsel for the revision petitioners/plaintiffs

submitted that the revision petitioners/plaintiffs are in possession

of the suit schedule property and the suit was filed for perpetual

injunction when the defendant continuously interfered with their

possession over the suit schedule property and thus, valuable rights

of the parties are involved in the suit. He further submitted that the

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trial Court failed to appreciate that the delay is neither willful nor

wanton on the part of the plaintiffs; that the trial Court failed to

consider the explanation given by the plaintiffs for the delay and

further, by adopting a rigid approach, the trial Court has erred in

dismissing the application on narrow technical grounds and hence,

prayed to allow this Revision Petition.

7. In support of his contention that the Courts should adopt a

liberal approach when considering applications for condonation of

delay, particularly when no mala fide or gross negligence is

evident, learned counsel for revision petitioners relied upon the

judgment of the Hon'ble Supreme Court in N.Balakrishnan Vs.

M.Krishnamurthy1.

8. Per contra, learned counsel for the respondent/defendant

submitted that the plaintiffs failed to explain the day-to-day delay;

that the plaintiffs are intentionally prolonging the matter for one or

other reasons; and that the trial Court taking into account the same,

has rightly dismissed the application as the same is devoid of any

merits and therefore, the impugned order of the trial Court warrants

no interference by this Court.

(1998) 7 SCC 123

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9. In N.Balakrishnan's (cited supra), the Hon'ble Supreme

Court at paras 9 and 10 held as hereunder:

"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 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 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 revisional jurisdiction, unless the exercise of discretion was on wholly 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 untrammeled by the conclusion of the lower Court.

10. The reason for such a different stance is thus:

The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."

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10. In the said judgment, the Hon'ble Supreme Court held that

Rules of limitation are not meant to destroy the rights of parties.

They are meant to see that parties do not resort to dilatory tactics,

but seek their remedy promptly; that the words "sufficient cause"

under Section 5 of the Limitation Act should receive a liberal

construction so as to advance substantial justice. The Hon'ble

Supreme Court also observed that it must be remembered that in

every case of delay there can be some lapse on the part of litigant

concerned. That alone is not enough to turn down his plea and shut

the door against him at the threshold. If the explanation does not

smack of mala fides or it is not put forth as part of a dilatory

strategy, the Court must show utmost consideration to the suitor.

11. Perusal of record discloses that the sole ground pleaded by

the plaintiffs seeking for condonation of delay in filing the

application for setting aside the dismissal order passed in the suit is

the illness of their counsel and his ultimate death in May, 2021,

which they came to know on 20.02.2022, i.e., about one year after

his death. The said fact of death of counsel appearing for the

plaintiffs is neither rebutted nor disputed by the defendant in the

counter filed by the trial Court. The plaintiffs also produced copies

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of medical records and the death certificates of the advocate-

Sri S.Jayachander Rao, who was engaged by them earlier. These

documents go to show the illness suffered by the said advocate and

his death on 01.05.2021.

12. Further, it is the case of plaintiff Nos.2 to 5 that their

mother-plaintiff No.1 who was looking after the case died on

10.12.2020, as such, only on 25.02.2022, they came to know about

dismissal of the suit for default and immediately, they filed the

application for condonation of delay in filing the application to set

aside the default order. Therefore, though this Court finds some

lapse/non-diligence on the part of plaintiff Nos.2 to 5 in pursuing

the matter, merely for that reason their plea cannot be turned down

and doors of justice shut for them.

13. As held by the Hon'ble Supreme Court in

N.Balakrishnan's (cited supra), Section 5 of the Limitation Act

does not say that discretion can be exercised by the Courts only if

the delay is within a certain limit. Length of delay is no matter,

acceptability of the explanation is the only criterion.

14. In the instant case, since substantial rights of the parties are

involved and as such, to safeguard the interests of the party in

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pursuing their remedy before the Court of law, this Court deems it

appropriate to take a liberal view and condone the delay.

15. In the light of the aforesaid facts and circumstances of the

case, this Court is of the considered view that the trial Court erred

in dismissing the application on mere technical grounds and hence,

the impugned order is liable to be set aside.

16. For the aforesaid reasons and in the light of the ratio laid

down by the Hon'ble Supreme Court in the judgment cited supra,

this Civil Revision Petition deserves to be allowed.

17. Accordingly, this Revision Petition is allowed and the

order, dated 18.07.2024, passed by the Junior Civil Judge at

Suryapet in I.A.No.171 of 2022 in OS.No.89 of 2014 is set aside

and I.A.No.171 of 2022 stands allowed.

18. As a sequel, pending Miscellaneous Petitions, if any, shall

stand closed. No costs.

__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date:23.04.2025 dr