Telangana High Court

Prabhakar Reddy vs M/S. Rajapushpa Properties Private ... on 3 January, 2025

Author: G.Radha Rani

Bench: G.Radha Rani

                                     1
                                                                  Dr.GRR, J
                                                              crp_3714_2024

       THE HONOURABLE Dr. JUSTICE G.RADHA RANI

           CIVIL REVISION PETITION No.3714 of 2024

ORDER:

This Civil Revision Petition is filed by the petitioner/respondent

No.7-Legal Representative of respondent No.1/plaintiff aggrieved by the

order dated 21.10.2024 in I.A No.350 of 2019 in O.S No.65 of 2016 on

the file of the I Additional District Judge, Medchal, Sangareddy District.

2. I.A No.350 of 2019 was filed by the defendant No.3 to

condone the delay of (242) days in filing the petition to set aside the

judgment and decree dated 24.07.2018 in O.S No.65 of 2016.

3. The suit was filed by the plaintiff for declaration of title in

respect of the agricultural land bearing Sy.No.447/E3/2, admeasuring

Ac.1-01 gunta, situated at Tellapur Village, Ramachandrapuram Mandal,

Sangareddy District and for the consequential relief of perpetual

injunction restraining the defendants from interfering with his possession

and enjoyment over the suit schedule property. The said suit was decreed

ex-parte on 24.07.2018. The defendant No.3 filed I.A No.350 of 2019 to

condone the delay of (242) days in filing the petition to set aside the

ex-parte decree and judgment in O.S No.65 of 2016 dated 24.07.2018.

As per the affidavit filed by the Manager of the defendant No.3-

Company. The defendant No.3 was not served with summons in the suit.

Dr.GRR, J crp_3714_2024 The plaintiff deliberately furnished wrong address in the suit to avoid

service of summons on defendant No.3. Though, summons were ordered

on 13.04.2017, the plaintiff did not choose to deposit the process fee on

any subsequent dates till 23.01.2018, and mischievously got the suit

posted on 23.03.2018 for steps and caused publication of summons

through substitute service by carrying publication in Janatha News Paper,

which was not in wide circulation in the local area. As such, the

defendant No.3 was not aware of the suit and could not appear in the suit.

There was no occasion for the defendant No.3 to know about the

proceedings in the above suit. He came to know about the suit and decree

passed therein on 19.02.2019 through the villagers. Immediately, he got

verified the records and came to know about the ex-parte judgment and

decree dated 24.07.2018 and applied for certified copies on the very next

day. The certified copies were furnished on 25.03.2019.

3.1. It was further submitted that the petitioner-Company was a

registered AGPA holder of D1 and D2 and also have Development

Agreement-Cum-GPA's in its favour from subsequent purchasers. Unless

the ex-parte judgment and decree dated 24.07.2018 made in the above

suit was set aside and it was permitted to contest the suit by filing its

written statement therein, it would suffer irreparable loss and hardship.

4. The legal representatives of the plaintiff filed counter

contending that the plaintiff deposited process for issuing summons to the

Dr.GRR, J crp_3714_2024 defendants before the Court but the defendant No.3 intentionally avoided

receiving the summons. After giving sufficient opportunity, the Court

gave paper publication. The publication was also given in a largest

circulated News Paper. The defendant No.3 was set ex-parte, after giving

sufficient opportunity and passed the decree in favour of the plaintiff and

prayed to dismiss the petition.

5. The trial Court vide the impugned order allowed the

application filed by the defendant No.3 on costs of Rs.5,000/- payable to

the plaintiff by 20.11.2024. Aggrieved by the said order, the respondent

No.7, the legal representatives of respondent No.1/plaintiff preferred this

C.R.P.

6. Heard Sri M.Rammohan, learned counsel for the petitioner

and Sri P.Venkat Reddy, learned counsel for the respondent - defendant

No.3.

7. Learned counsel for the petitioner contended that the learned

judge recorded a finding in para No.9 of the impugned order that

summons were served on the respondent - defendant No.3 by way of

publication and ex-parte decree was passed on 29.06.2018. In such,

scenario reckoning the delay from the date of alleged knowledge of the

decree but not from the date of decree was illegal and unsustainable.

The delay was condoned without recording any finding regarding

sufficient cause and prayed to set aside the order passed by the learned I

Dr.GRR, J crp_3714_2024 Additional District Judge, Sangareddy in I.A No.350 of 2019 in O.S

No.65 of 2016 dated 21.10.2024.

8. Learned counsel for the respondent - defendant No.3

vehemently opposed the contentions raised by the learned counsel for the

petitioner contending that the whole process adopted by the petitioner -

plaintiff in not serving summons on the defendant No.3 was defective.

The plaintiff deliberately gave old address of the defendant No.3, though,

he was aware of his current address. The petitioner - plaintiff had not

deposited the process fee before the Court for issuing summons to the

defendants and filed the docket proceedings of the I Additional District

Judge, Medak, Sangareddy District in O.S No.65 of 2016 dated

13.04.2017, 08.06.2017, 08.08.2017, 13.10.2017, 13.11.2017, 23.01.2018

in support of his contention.

8.1. He further contended that as per the docket order dated

23.03.2018, the plaintiff managed to take steps against D1 to D3 and filed

a steps petition on 01.05.2018 and got published the same in Janatha

News Paper, which was not widely circulated and relied upon the

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

M.Krishnamurthy1 and of the High Court of Andhra Pradesh at

(1998) 7 SCC 123

Dr.GRR, J crp_3714_2024 Amaravati in Chinthapanti Somasekhar Reddy Vs. Yangareddy

Madhusudhan Reddy 2.

9. Perused the record as well as the docket proceedings filed by

the learned counsel for the respondent - defendant No.3. The docket

proceedings dated 13.04.2017, 08.06.2017, 08.08.2017, 13.10.2017,

13.11.2017, 23.01.2018 would disclose that process fee was not deposited

by the plaintiff to issue summons to D1 to D3. Without depositing the

process fee and without service of summons on D1 to D3 through the

Court/Process Server, the docket order dated 23.03.2018 would disclose

that steps were ordered against D1 to D3 and on 01.05.2018, the plaintiff

filed steps petition under Order 5 Rule 20 read with Section 151 of C.P.C

and publication was ordered, to notify D1 to D3 by way of substitute

service by way of publication in Janatha News Paper.

10. The contention of the learned counsel for the plaintiff was

that service of summons by way of publication was also a valid service.

As such, the trial Court committed an error in reckoning the delay from

the date of alleged knowledge of the decree but not from the date of

decree. The trial Court noted that it was settled law that in a catena of

judgments of the Hon'ble Apex Court and the Hon'ble High Court, it was

held that where summons were caused through substitute service by way

of paper publication and where the defendant had no knowledge about the

2024 SCC OnLine AP 3545

Dr.GRR, J crp_3714_2024 date of hearing, delay has to be calculated from the date of knowledge

and holding that an opportunity need to be given to the defendant No.3 to

prove his contentions on merits allowed the petition filed by the

defendant No.3 to condone the delay on payment of costs. As per the

learned counsel for the respondent - defendant No.3 costs were also paid

by him.

11. As per the judgment of the Hon'ble Apex Court in

N.Balakrishnan Vs. M.Krishnamurthy (1-supra), it was held that

"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 the 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 in not because on the expiry of such time a bad cause would transform into a good cause."

"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory

Dr.GRR, J crp_3714_2024 tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."

"12.A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause"

under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]."

12. It is settled law that the length of delay is not the criteria but

sufficiency of the cause of the delay is the criteria to condone the delay.

As the record would disclose that no summons were issued to the

defendant through the process of the Court and the only mode of service

on defendants is by way of paper publication and the same was also

published not in a widely circulated News Paper, the trial Court rightly

allowed the petition filed by the respondent-defendant No.3 for

condonation of delay that too on payment of costs, which was already

Dr.GRR, J crp_3714_2024 complied by the respondent - defendant No.3. This Court does not find

any illegality in the order of the trial Court to set aside the same.

13. In the result, this Civil Revision Petition is dismissed

confirming the order of the learned I Additional District Judge, Medchal,