Telangana High Court
K.Jaipal Reddy Died vs K.Hanumanthu Reddy on 19 February, 2025
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE Dr. JUSTICE G.RADHA RANI
CIVIL REVISION PETITION No.3082 of 2019
ORDER:
This Civil Revision Petition is filed by the petitioner - defendant No.2
aggrieved by the order dated 15.07.2019 passed in I.A.No.225 of 2018 in
O.S.No.248 of 2012 by the learned Principal Senior Civil Judge,
Mahabubnagar, Mahabubnagar District for dismissing the petition filed by him
under Section 5 of the Limitation Act to condone the delay of 1384 days in
setting aside the ex-parte decree passed against him dated 21.07.2014.
2. The petitioner died during the pendency of the revision petition and his
legal representatives were brought on record as petitioners 2 to 4.
3. The facts of the case in brief are that the respondent No.1 - plaintiff filed
O.S.No.248 of 2012 for partition of the suit schedule land into three equal
shares and for allotment of one-third share to him. The petitioner and
respondents were real brothers. Summons were served on defendants 1 and 2 in
the said suit. The defendants filed vakalat but not filed written statement, as
such they were set ex-parte. Subsequently, the suit was dismissed for default
and the same was restored on 26.02.2014 by allowing I.A.No.659 of 2013.
Thereafter the petitioner - defendant No.2 did not participate in the suit. As
Dr.GRR, J
crp_3082_2019
such, an ex-parte decree was passed on 21.07.2014. The respondent No.1 -
plaintiff filed I.A.Nos.612 and 613 of 2015 for appointment of Commissioner
and passing of final decree. The petitioner filed an application for setting aside
the ex-parte decree and as there was a delay of 1384 days filed a petition under
Section 5 of the Limitation Act to condone the said delay. The said petition was
dismissed by the trial court and aggrieved by the said dismissal, the petitioner
preferred this revision.
4. Heard Sri K.Venkatesh Gupta, learned counsel for the petitioner and
Sri Satya Sadhan, learned counsel representing Sri S.V.Malik, learned counsel
for the respondent No.1 - plaintiff on record.
5. Learned counsel for the petitioner submitted that the revision petitioner
was a poor agriculturist. He was not aware of the legal proceedings. No fresh
notice was ordered to the revision petitioner in the petition to restore the suit to
its file. The delay in not contesting the suit by filing written statement and not
filing the application within the stipulated period of time was neither intentional
nor wanton, but only due to the fact that the revision petitioner was suffering
with heart ailment. The trial court ought to have seen that the respondent No.1
- plaintiff himself was claiming that there was partition of the suit schedule
properties between the family members, earlier, as such the suit for partition
itself was not maintainable. The land bearing Survey No.110/1/E to an extent
Dr.GRR, J
crp_3082_2019
of Ac.0-39 guntas was the self-acquired property of the revision petitioner. The
same was not the joint family property and not part of the deed of partition
between the joint family members held on 28.09.1999. In view of the steep
increase in the prices of lands in the village, the respondent No.2 instigated
respondent No.1 to file the present suit with fictitious claims. If the impugned
order was not set aside and the petition seeking to condone the delay was not
allowed, the revision petitioner would be put to great hardship and would suffer
irreparable injury. On the other hand, if the petition was allowed and if the suit
was disposed of on merits, no prejudice would be caused to the respondents.
The impugned order would suffer from perversity and exercising the
jurisdiction vested in it in an improper manner. If the same was allowed to
stand, great prejudice would be caused to the petitioners. The trial court ought
to have allowed the petition by imposing conditions or awarding reasonable
costs to compensate the respondents and prayed to set aside the order dated
15.07.2019 passed in I.A.No.225 of 2018 in O.S.No.248 of 2012 by the learned
Principal Senior Civil Judge, Mahabubnagar, Mahabubnagar District and relied
upon the judgment of the Hon'ble Apex Court in Ummer v. Pottengal Subida
and Others 1.
6. Learned counsel for the respondent No.1 - plaintiff on the other hand
contended that there was no illegality or irregularity in the order passed by the
LAWS (SC) 2018 3 12
Dr.GRR, J
crp_3082_2019
court below. The learned Principal Senior Civil Judge, Mahabubnagar District
on considering the contentions of both the parties and the legal aspect in the said
regard observing that the petitioner failed to give proper explanation, showing
sufficient cause for the period of delay with proper reasons and not enclosed
proper documents in proof of his ailment, dismissed the petition and relied upon
the judgment of the erstwhile common High Court of Telangana and Andhra
Pradesh in C.R.P.Nos.1045 and 1241 of 2018 dated 20.11.2018.
7. Perused the record.
8. As seen from the affidavit filed by the petitioner in I.A.No.225 of 2018,
no reasons were given by him for condoning the inordinate delay of 1384 days
in filing his written statement. He only stated that the case was posted for filing
his written statement, due to his ill health, he could not file the written statement
within the time. As such, the Court set him ex-parte and passed a preliminary
decree on 21.07.2014. He had not stated that he had not received the notice
after the suit was restored to its file. He had not even stated that he was
suffering with heart ailment as raised in the grounds of appeal or as contended
by the learned counsel for the revision petitioner. The document filed by him
along with the application would show that he visited Mallika Hospital on
03.07.2014 for exertional giddiness. Hence, it was rightly observed by the trial
court that he was not admitted as in-patient in the hospital, nor the document
Dr.GRR, J
crp_3082_2019
was showing that he was suffering with any heart ailment and the said
document itself was not sufficient to consider that it was a sufficient cause for
explaining the delay of 3 years 10 months in filing the application for setting
aside the ex-parte decree.
9. No proper care was taken by the petitioner in drafting the affidavit or in
explaining the delay to condone the same. The merits of the case cannot be
looked into by the Courts while considering the applications for condonation of
delay as per the recent judgment of the Hon'ble Apex Court in H.Guruswamy
and Others v. A.Krishnaiah since decreased by LRs. 2 in Civil Appeal
No.317 of 2025. As such, this Court cannot consider the contentions raised by
the learned counsel for the petitioner with regard to the earlier partition or that
land in Survey No.110/1/E to an extent of Ac.0-39 guntas was the self-acquired
property of the revision petitioner and that it was not part of the deed of
partition between the joint family members held on 28.09.1999.
10. As per the well settled principles stated by the Hon'ble Apex Court in
several of its judgments, it was not the length of the delay, but the acceptability
of the explanation, which should be considered while disposing the applications
pertaining to condonation of delay. As per Hon'ble Apex Court, "sufficient
cause" means the party should not have acted in a negligent manner during the
said period.
2025 Live Law (SC) 53
Dr.GRR, J
crp_3082_2019
11. The trial court also observed that the petitioner was none other than the
brother of the respondent No.1 - plaintiff and was residing in a village near
Mahabubnagar, where the Court was situated and there was every possibility of
the petitioner to ascertain the progress of the suit, but the petitioner had not
taken any steps to know the progress of the suit for more than three years and
had not shown sufficient reason why he had not shown interest in knowing the
proceedings of the case until he received summons in the final decree petition
filed by respondent No.1, which would clearly show that the petitioner was
negligent and careless in filing the petition for condonation of delay.
12. In the judgment relied by the learned counsel for the petitioner in Ummer
v. Pottengal Subida and Others (cited supra), it was held that:
"14. The cause pleaded by the appellant therein was relating to
his prolonged illness during the period in question. The
appellant also filed medical documents to support the factum of
his illness during the relevant time.
15. It is not in dispute that the appellant is an old man and in his
late sixties. It is also not in dispute that he did suffer heart
disease during the relevant period and later he was down with
dengue fever. It is also not in dispute that he was hospitalized
to get medical treatment for these two ailments for a long time
during that period. It is also not in dispute that he was mentally
disturbed due to disputes going on in his family and was not
able to attend to his day-to-day duties due to his old age and
prolonged ailments.
Dr.GRR, J
crp_3082_2019
16. It is an admitted fact that the High Court did not dispute the
genuineness of these facts and nor disputed the genuineness of
the documents filed by the appellant in support of the cause
pleaded. On the other hand, the High Court found as a fact that
the appellant did suffer these ailments.
17. In the light of the aforementioned undisputed facts, in our
opinion, the High Court should have taken liberal view in the
matter and held the cause shown by the appellant as "sufficient
cause" within the meaning of Section 5 of the Limitation Act
and accordingly should have condoned the delay in filing the
appeal.
18. One cannot now dispute the legal proposition that the
earlier view of this Court that the appellant was required to
explain the delay of each day till the date of filing the appeal
has since been diluted by the later decisions of this Court and
is, therefore, held as no longer good law."
13. There was no dispute to the fact that the discretion to be exercised in a
petition for condonation of delay is based upon the facts of each case.
14. In the above case, it was recorded that the appellant therein filed medical
documents to support the factum of his illness during the relevant time and that
later he was down with dengue fever and he was hospitalized for the two
ailments for a long time during that period. It was also recorded that he was
mentally disturbed due to the disputes going on in his family and was not able
to attend day to day duties due to his old age and prolonged ailments, which was
not the case in hand. Though, the petitioner need not explain the day to day
Dr.GRR, J
crp_3082_2019
delay, but atleast he must show sufficient cause for condoning the inordinate
delay in filing the petition.
15. In C.R.P.Nos.1045 and 1241 of 2018, the erstwhile common High Court
of Telangana and Andhra Pradesh observed that:
"What constitute a sufficient cause always depends upon the
facts of a particular case and length of delay is not the
determining factor. In the above judgments, the Court
concluded that the word "sufficient cause" must be given
liberal construction without adopting pedantic approach, but
that does not mean that the Court has to accept whatever the
reasons party assigned as sufficient cause to condone the delay
under Section 5 of the Limitation Act. When a special reason
is assigned i.e. ill health, for a period of 573 days in filing the
petition, there must be some material, at least to the satisfaction
of the Court to arrive a just conclusion that the plaintiff was
prevented by a sufficient case, which is not beyond her control.
In the absence of any material, acceptance of such reasoning is
nothing but jettisoning the law of limitation, as observed by the
Hon'ble Apex Court in Lanka Venkateswarlu (died) by LRs.
v. State of AP [AIR 2011 SC 1199]. Therefore, the order
passed by the trial court is erroneous on the face of the record
and passing of such an order without any material to
substantiate the reason assigned by the petitioner for her failure
to prosecute the proceedings and the order did not stand to legal
scrutiny and therefore it is liable to be set aside without
assigning any reason."
Dr.GRR, J
crp_3082_2019
In the above case, the delay of 573 days in allowing the petition to
condone the delay by the trial court is considered as erroneous by the High
Court.
16. The Hon'ble Apex Court in Basawaraj and another v. Special Land
Acquisition Officer 3 after analyzing the law laid down by it in its earlier
judgments concluded that:
"The expression "sufficient cause" should be given a liberal
interpretation to ensure that substantial justice is done, but only
so long as negligence, inaction or lack of bonafides cannot be
imputed to the party concerned, whether or not sufficient cause
has been furnished, can be decided on the facts of a particular
case and no straitjacket formula is possible.
It is a settled legal proposition that law of limitation may
harshly affect a particular party but it has to be applied with all
its rigour when the statute so prescribes. The Court has no
power to extend the period of limitation on equitable grounds.
"A result flowing from a statutory provision is never an evil. A
Court has no power to ignore that provision to relieve what it
considers a distress resulting from its operation." The statutory
provision may cause hardship or inconvenience to a particular
party, but the Court has no choice but to enforce it giving full
effect to the same. The legal maxim "dura lex sed lex" which
means "the law is hard but it is the law", stands attracted in
such a situation."
(2013) 14 SCC 81
Dr.GRR, J
crp_3082_2019
17. Considering the principles stated by the Hon'ble Apex Court in the above
case and as no reasonable cause was stated by the petitioner in his affidavit for
condoning the inordinate delay of 1384 days in filing the application for setting
aside the ex-parte decree dated 21.07.2014, the trial court rightly dismissed the
petition filed by the petitioner and this Court does not find any illegality or
irregularity in the above order passed by the trial court to set aside the same.
18. In the result, the Civil Revision Petition is dismissed confirming the order
dated 15.07.2019 passed in I.A.No.225 of 2018 in O.S.No.248 of 2012 by the
learned Principal Senior Civil Judge, Mahabubnagar, Mahabubnagar District.
No order as to costs.
As a sequel, miscellaneous applications pending in this petition, if any,
shall stand closed.
____________________
Dr. G. RADHARANI, J
Date: 19th February, 2025
Nsk
