Telangana High Court
Narayanadas Kanthamma, vs Sonnila , Narayanadas Agaiah on 20 February, 2025
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE Dr.JUSTICE G.RADHA RANI
CIVIL REVISION PETITION No.532 of 2020
ORDER:
This Civil Revision Petition is filed by the petitioner/plaintiff,
aggrieved by the order, dated 03.01.2020 passed by the Principal
Junior Civil Judge, Huzurabad in I.A.No.433 of 2016 in O.S.No.86 of
2011, in dismissing the petition filed by her under Section 5 of the
Limitation Act, to condone the delay of 131 days in filing the
restoration petition.
2. Heard Sri S.Surender Reddy, learned counsel for the
petitioner and Sri G. Abdul Khader, learned counsel for the
respondent.
3. Learned counsel for the petitioner submitted that the
petitioner was the plaintiff and she filed the suit for perpetual
injunction in respect of the suit house, basing on a simple sale deed,
dated 02.05.2007. On receipt of summons, the defendant engaged an
Advocate and filed written statement. The matter was posted to
18.12.2015 for filing the chief affidavit of the petitioner/plaintiff, but
the petitioner could not file her chief affidavit, as her counsel was
admitted in hospital and could not prepare the same. The counsel for
the petitioner was suffering with ill-health due to paralysis and he
could not attend the Court for a period of three months. The petitioner
could not represent the matter before the Court due to ignorance of
law, as such, the suit was dismissed for default on 21.01.2016. The
petitioner filed an application for restoration of the suit and as there
was a delay of 131 days in filing the said application, she preferred
I.A.No.433 of 2016 under Section 5 of Limitation Act to condone the
delay and to restore the suit, but the trial Court dismissed the said
application. He further submitted that the petitioner explained her
difficulty that her counsel was hospitalized due to paralysis and that
he could not attend the Court for three months and he could not
prepare the chief affidavit of the petitioner, due to which, the delay
occurred in filing the restoration petition. The trial Court ought to
have decided the matter on merits also. The trial Court granted ad
interim injunction in favour of the petitioner in I.A.No.325 of 2011 on
12.05.2011. The petitioner had a good case on merits. The trial
Court dismissed the I.A. on the threshold itself instead of giving an
opportunity to the petitioner to prove her case on merits. He further
submitted that the petitioner filed necessary documents in this C.R.P.,
the medical record of the learned counsel for the petitioner in proof of
his taking treatment for paralysis and prayed to allow the C.R.P. by
condoning the delay and to give an opportunity to the petitioner to
prove her case on merits.
4. On the other hand, learned counsel for the respondent
contended that the trial Court rightly dismissed the application filed
by the petitioner to condone the delay, as the petitioner failed to show
any sufficient cause and failed to explain the day-to-day delay. There
was clear negligence and lack of bonafides on the part of the
petitioner. The petitioner failed to show any sufficient cause, as such,
the trial Court rightly dismissed the application. The petitioner failed
to file any document before the trial Court to establish her contentions
and relied upon the judgment of this Court in Dudekula Abbas v.
Koduru Maheshwar Reddy 1.
5. Perused the record. The petitioner is the plaintiff and she
filed O.S.No.86 of 2011 seeking the relief of perpetual injunction.
The defendant filed written statement. Issues were framed by the trial
Court on 10.07.2015. While the matter was coming up for filing the
chief affidavit, the petitioner/plaintiff could not file the same, as such,
2023 (2) ALD 891 (TS)
the suit was dismissed for default on 21.01.2016. The contention of
the petitioner was that her counsel suffered with paralysis and
admitted in hospital, as such, her chief affidavit could not be prepared
and due to the said reason, the suit was dismissed for default. Though
the petitioner did not file the documents in support of her contention
before the trial Court, she filed the same before this Court showing
that her counsel Guduri Satyanarayana was admitted in the Vishwa
Super Specialty Hospital and Dialysis Centre, Hanamkonda on
28.11.2015 and was discharged on 03.12.2015. It further shows that
he was admitted in the hospital with weakness in right upper and
lower limb, slurred speech/mouth and deviation to left side, MRI
brain report was also filed showing acute infarct involving Brain
Stem on Left Side/Small Gliotic Area in Left Capsulo-Ganglionic
Region/Right Maxillary Sinusitis. The NCCT Brain taken on
29.11.2015 also disclosed Lacunar Infarct in Left Capsulo Ganglionic
Region. Thus, the documents filed by the petitioner would show that
her counsel was admitted in hospital due to paralytic attack and could
not appear before the Court for the said reason and was not in a
possession to prepare her evidence affidavit. The delay was stated to
be only of 131 days and the petitioner filed her affidavit explaining
the said delay, as such, the trial Court ought to have allowed the
application filed by the petitioner.
6. The Hon'ble Apex Court in several cases including in its
recent case in Mool Chandra v. Union of India and another 2 held
that:
"It is not the length of delay that would be required to be
considered while examining the plea for condonation of delay. It
is the cause for delay which has been propounded to be
examined. If the cause for delay would fall within the four
corners of "sufficient cause", irrespective of the length of delay
same deserves to be condoned. However, if the cause shown is
insufficient, irrespective of the period of delay, same could not
be condoned".
7. The Hon'ble Apex Court further observed that:
"If negligence can be attributed to the appellant, then
necessarily the delay which has not been condoned by the
Tribunal and affirmed by the High Court deserves to be
accepted. However, if no fault can be laid at the doors of the
appellant and cause shown is sufficient then we are of the
considered view that both the Tribunal and the High Court were
in error in not adopting a liberal approach or justice oriented
approach to condone the delay."
8. Applying the aforesaid principle, as the petitioner was
able to explain the delay by producing relevant documentary evidence
in support of her contention, a liberal approach ought to have been
taken by the trial Court in condoning the delay. As no negligence
could be attributed on her behalf, it is considered fit to allow the CRP
Civil Appeal No.8435-8436/2024 [2024 INSC 577]
by condoning the delay of 131 days in filing the application for
restoration of O.S.No.86 of 2011 by setting aside the order of the
learned I Additional Junior Civil Judge, Huzurabad in I.A.No.433 of
2016 in O.S.No.86 of 2011, dated 03.01.2020.
9. In the result, the CRP is allowed by setting aside the
order of the learned I Additional Junior Civil Judge, Huzurabad in
I.A.No.433 of 2016 in O.S.No.86 of 2011 dated 03.01.2020. No
costs.
Miscellaneous petitions, if any pending shall stand closed.
_____________________
Dr. G.RADHA RANI, J
Dt.: 20.02.2025
mnv
