Banda Lubeth vs Kappala Ramesh
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Telangana High Court

Banda Lubeth vs Kappala Ramesh on 27 February, 2025

       HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

             CIVIL REVISION PETITION NO.607 OF 2024

ORDER:

This Civil Revision Petition is filed assailing the order dated

11.10.2023 in I.A.No.530 of 2023 in O.S.No.46 of 2011 passed by the

Senior Civil Judge at Nalgonda.

2. Heard Sri D.Y.N.L.N.Charyulu, learned counsel for petitioners

and Sri Karunakar Reddy, learned counsel for respondent.

3. The petitioners herein are the defendants and respondent herein

is the plaintiff before the trial Court.

4. Brief facts relevant for adjudication of the present Civil Revision

Petition are that respondent filed a suit in O.S.No.46 of 2011 for

recovery of money. Summons was served on the defendants and they

have engaged an advocate Sri T.Kiran Kumar to defend the suit,

however, the petitioners were set ex parte for non filing of written

statement. Subsequently, the trial Court on due consideration of the

material and evidence placed on record, passed ex parte judgment and

decree on 21.07.2011.

5. The defendants filed an application under Order IX Rule 13 of

CPC to set aside the ex parte judgment and decree along with an

application under Section 5 of the Limitation Act to condone the delay LNA,J,

of 4366 days under Section vide I.A.No.530 of 2023 in filing application

under Order IX Rule 13 of CPC. In the said application, defendants

averred that they came to know about passing of ex parte judgment and

decree on 21.07.2011 only when they received notices in E.P.No.6 of

2012 filed by the respondent for execution of decree; that they

approached their counsel Sri G.Kishore Kumar and he informed the

defendants that E.P. as well as E.A. were dismissed by an order dated

10.05.2015 and there are no proceedings pending against the

defendants; that in the first week of May, 2023, petitioners came to

know about filing of another E.P.No.85 of 2019 when some people came

to their house to serve notices. It is further contended that respondent is

trying to execute the ex parte decree, which was obtained by playing

fraud and immediately, the petitioners made an application for getting

certified copies of documents in O.S.No.46 of 2011 and the same were

furnished to them on 12.05.2023 and on advice from their counsel, they

filed the instant application for condonation of delay of 4336 days in

filing application under Order IX Rule 13 of CPC for setting aside the ex

parte judgment and decree.

6. Respondent filed counter denying the allegations made in the

application and contended that application is not maintainable as

petitioners failed to explain sufficient cause for inordinate delay and LNA,J,

further there is gross negligence on the part of the petitioners in filing

application. It is further contended that suit is of the year 2011 and on

receipt of summons, petitioners had engaged a counsel, Sri T.Kiran

Kumar, however, the petitioners were set ex parte as they failed to file

their written statement and therefore, the petitioners cannot say that

they were ignorant of court proceedings and since the delay is not

properly explained, the application is liable to be dismissed.

7. The trial Court, considering the contentions of both the parties,

dismissed the application vide order dated 11.10.2023 with an

observation that the reasons assigned by the petitioners for condonation

of delay do not fit within the expression sufficient cause and there was

an inordinate delay in prosecuting the lis by wanton and deliberate

negligence on the part of the petitioners and therefore, the same cannot

be condoned.

8. Learned counsel for petitioners had contended that trial Court

failed to consider the fact that the petitioners were not aware of passing

of ex parte judgment and decree till they received notices in E.P. filed by

the respondent. It is further contended that trial Court should have

taken a liberal approach while condoning the delay and ought to have

condoned the delay by imposing suitable costs, therefore, the impugned

order is erroneous and thus, unsustainable and the revision petition LNA,J,

deserves to be allowed. In support of the contention, learned counsel for

petitioners placed reliance on the judgment of Madras High Court in

Civil Revision No.152 of 2022, dated 22.07.2022.

9. Per contra, learned counsel for respondent had contended that

trial Court has rightly declined to condone inordinate delay of 4366

days in filing application to set aside the ex parte judgment and decree

since petitioners failed to offer cogent, plausible reasons for such

inordinate delay. He further contended that even the reasons set out by

the petitioners are factually incorrect since they were aware of filing of a

suit and they have also engaged an advocate on their behalf to defend

the suit and they were set ex parte for non-filing of written statement

and therefore, the contentions that they came to know about passing of

ex parte judgment and decree only after receipt of notices in E.P., is

incorrect. He finally contended that there are no merits in the revision

petition and the same is liable to be dismissed.

10. To substantiate his contention, learned counsel for respondent

placed reliance on the judgment of Hon'ble Apex Court in Union of India

and another v. Jahangir Byramji Jeejeebhoy (D) through his LR (SLP (Civil)

No.21096 of 2019 dated 03.04.2024), wherein the Hon'ble Apex Court by

referring the judgment of the same Court in Esha Bhattacharjee v.

Managing Committee of Raghunathpur Nafar Academy & Others [(2013) 12 LNA,J,

SCC 649], held that "delay should not be excused as a matter of generosity.

Rendering substantial justice is not to cause prejudice to the opposite party".

11. Perusal of the record would disclose that respondent filed a suit

for recovery of money vide O.S.No.46 of 2011 and on receipt of

summons, petitioners engaged an Advocate, however, they were set ex

parte for non-filing of written statement and later, ex parte judgment and

decree was passed by the trial Court vide judgment dated 21.07.2011.

12. Petitioners have also received notices in E.P.No.6 of 2012 and

they have engaged a counsel, however, they failed to take steps to set

aside ex parte decree. The petitioners have filed the present application

only after receipt of notice in subsequent E.P.No.85 of 2019 with

inordinate delay of 4366 days in filing set ex parte decree. Therefore,

there are clear latches and default on the part of petitioners in pursuing

the matter.

13. The facts in the judgment of Madras High Court (supra) and the

facts in the present case are completely different and, therefore, the

same has no application to the present case. In fact, in the said judgment

of Madras High Court, it was observed that sufficient cause must be a

cause which is beyond control of the party invoking the aid of the

section; that for somebody else's negligence or fault, the party or the

substantial justice should not be allowed to suffer; where neither LNA,J,

negligence nor want of bona fide is imputable to the party for the delay

in filing, it would constitute sufficient cause. However, in the present

case, as mentioned supra, there are clear latches and default on the part

of petitioners.

14. In Basawaraj and another v. Special Land Acquisition

Officer 1, the Hon'ble Supreme Court held as under:

"11. 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 bona fides 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. (Vide Madanlal v. Shyamlal [(2002) 1 SCC 535 : AIR 2002 SC 100] and Ram Nath Sao v. Gobardhan Sao [(2002) 3 SCC 195 : AIR 2002 SC 1201] .)

12. 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. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.

xxx

2013 (14) SCC 81 LNA,J,

15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."

15. In Postmaster General and others vs. Living Media India

Limited and another 2, Hon'ble Apex Court having considered catena

of decisions, including Pundlik Jalam Patil (dead) by LRs. Vs.

Executive Engineer, Jalgaon Medium Project and another 3,

wherein it was held that,

"17....... The evidence on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and "do not slumber over their rights".

and observed that taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, would not be proper and observed as under:-

(2012) 3 SCC 563

(2008) 17 SC 448 LNA,J,

"29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest."

16. In Government of Maharashtra (Water Resources

Department) rep.by Executive Engineer vs. Borse Brothers

Engineers and Contractors Private Limited 4, Hon'ble Supreme

Court held as under:

"63. ...... In a fit case in which a party has otherwise acted bona fide and not in a negligent manner, a short delay beyond such period

(2021) 6 SCC 460 LNA,J,

can, in the discretion of the court, be condoned, always bearing in mind that the other side of the picture is that the opposite party may have acquired both in equity and justice, what may now be lost by the first party's inaction, negligence or laches."

17. In view of the above discussion and legal position, in considered

opinion of this Court, the reasons offered by the petitioners for

condonation of delay does not inspire the confidence of this Court

since no plausible explanation has been offered for huge inordinate

delay of 4366 days in filing application and no sufficient cause has

been shown for such delay. The Civil Revision Petition fails and

accordingly dismissed. There shall be no order as to costs.

Pending miscellaneous applications if any shall stand closed.

__________________________________ LAXMI NARAYANA ALISHETTY,J Date: 27.02.2025 kkm