Telangana High Court

M. Durga Reddy vs Nanapuram Mallesh on 13 June, 2025

Author: T. Vinod Kumar

Bench: T. Vinod Kumar

        THE HON'BLE SRI JUSTICE T. VINOD KUMAR

         CIVIL REVISION PETITION No. 1681 of 2023

ORDER:

1. The present Civil Revision Petition is filed aggrieved by the

order dated 21.04.2023 in E.A. No. 8 of 2022 in E.A. No. 680 of

2018 in E.P. No. 341 of 2022(Old E.P. No. 288 of 2015) passed by

the II Additional Senior Civil Judge, Medchal Malkajgiri District,

At Malkajgiri.

2. The revision petitioner herein is the petitioner in the underlying

application and Decree Holder in the Suit vide O.S. No. 1515 of

2010.

3. The revision petitioner had filed E.P. No. 341 of 2022 under

Order XXI Rule 35 CPC seeking delivery of possession. In the

aforesaid Execution Petition warrants were issued and executed on

30.10.2018 by delivery of possession to the revision petitioner.

4. The respondents/claim petitioners subsequently filed E.A. No.

680 of 2018 under Order XXI Rules 99 and 100 challenging the

execution and sought for restoration of possession.

5. The petitioner was served notice of the said petition on

22.02.2018 but failed to file a counter until 10.01.2020, despite

being granted repeated opportunities including conditional order of

payment of cost, which was not complied. Thus, the Court below

forfeited his right to file the counter.

6. The petitioners herein had filed an interlocutory application

under Section 151 of CPC vide E.A. No. 8 of 2022 praying to set-

aside the order dated. 10.01.2020 in E.A. No. 680 of 2018, by

permitting the petitioner herein to file counter in the said

application.

7. The Trial Court upon hearing both sides and perusing the

record, observed that though the petitioner had claimed to be

bedridden until 17.02.2020, failed to file any medical

documentation supporting his claim. In contrast, the respondent

had provided multiple references to the petitioner's active legal

participation during the relevant period. Furthermore, the petitioner

did not file any rejoinder to rebut these allegations or to provide an

explanation for failing to file a counter. In addition, the petitioner

failed to specify the documents he intended to obtain for filing the

counter.

8. The trial Court further observed that in the absence of any

credible medical evidence or other justifiable grounds for the delay,

and as sufficient cause was not shown to set aside the forfeiture

order, dismissed the underlying application.

9. Heard Sri D. Ramakrishna, learned counsel for the petitioner,

Sr. M. Shankar learned Counsel for respondent Nos. 1 and 2 and

perused the record.

10.The petitioner herein contends that he being the decree holder,

the E.P. schedule property having been delivered to him, the

application filed by the respondents/claim petitioners vide E.A. 680

of 2018 seeking restoration of their alleged possession under Order

XXI Rules 99 and 100 CPC cannot be permitted; and that prior to

the filing of the said application, the claim petitioners had filed an

application under Order XXI Rule 58 CPC, resisting delivery of

possession, which was returned.

11.The Petitioner contends that the trial Court vide order dated.

10.01.2020 had forfeited the right of the petitioner herein to file a

counter in the said E.A. No. 680 of 2018; that the petitioner

thereafter filed the underlying interlocutory application vide. E.A.

8 of 2022 in E.A. No. 680 of 2018 praying for setting aside of the

forfeiture order dated. 10.01.2020 and to grant permission to file

his counter in the claim petition, as he was bedridden with chronic

back pain from March 2019, and for the said reason he could not

appear and file counter before the court below.

12.The petitioner further submits that he became aware of the order

forfeiting his right to file counter after contacting his counsel; that

due to the sudden outbreak of COVID-19, he was unable to obtain

necessary documents from the concerned authorities to file the

counter. It is further contended that these unavoidable

circumstances constituted sufficient cause, which the Court below

failed to consider before dismissing the petition.

13.The petitioner also contends that the trial Court erred in

dismissing the underlying interlocutory application without

appreciating the extraordinary and compelling circumstances

pleaded by the petitioner herein, including prolonged illness and

sudden outbreak of pandemic.

14. Per contra the respondent/claim petitioners by drawing

attention of this Court to the detailed counter filed before the trial

Court contended that the claim of petitioner herein being bedridden

is false and unsupported by any medical record or certificate of a

doctor. The respondents herein had claimed that the revision

petitioner shad undertaken several legal actions during the period

of which he had claimed of suffering with illness, including a

police complaint registered on 09.04.2019 (Cr. No. 136/2019),

filing of a counter in a writ petition on 03.06.2019, another writ

petition on 13.08.2019 (W.P. No. 17513 of 2019), a representation

letter to GHMC dated 12.10.2020, W.P. No. 19017 of 2020 filed

on 20.10.2020, and a contempt case filed on 05.10.2021 before this

Court. The respondents thus contend all the above actions of the

petitioner demonstrate that he was not suffering from any serious

health issues and was actively involved in litigation during the said

period.

15.The respondents contend that the claim petition was posted for

counter on 29.11.2019, but due to non-representation on behalf of

the petitioner, the matter was adjourned to 10.01.2020 with a cost

of Rs.100/-. However, the petitioner again failed to appear, and

accordingly, his right to file a counter was forfeited. Therefore, it is

evident that the petitioner had deliberately avoided filing the

counter and misled the court by suppressing material facts. The

Court below has rightly dismissed the underlying interlocutory

application.

16. I have taken note of the respective contentions urged.

17.On a careful consideration of the submissions made and perusal

of the material on record, this Court finds that the trial Court's

order forfeiting the petitioner's right to file a counter was more

based on procedural delay, without fully appreciating the

mitigating circumstances pleaded by the petitioner, due to

prolonged illness and sudden outbreak of pandemic.

18.Though the petitioner had not filed any supporting medical

records or specify the documents he sought to obtain, the trial

Court did not exercise its discretion in a liberal and justice-oriented

manner, particularly when the petition involved adjudication of

substantive rights related to possession and title. It is to be noted

that the procedural forfeiture has the effect of foreclosing

adjudication on merits, which is undesirable unless the delay is

found to be wilful or deliberate.

19.The Apex Court in Joginder Singh (Dead) thr. L.Rs. vs.

Virinderjit Singh Gill (Dead) thr. L.Rs. and Ors1, while dealing

with the procedural irregularities, held as below:

".... Whilst looking at it purely from a procedural point of view, this may have some merit, however, as had been long established, procedural irregularity could not defeat substantive rights or could not subvert substantive justice. Since the objector or his father already had a decree in their favour, fruits thereof could not be denied to them by virtue of the fact that while attempting to protect their rights in a subsequent suit which would have affected their enjoyment of such property, the Sections or Orders under which they sought such protection, were incorrect."

20. By applying the above principle to the present case, it is to be

noted that a litigant should ordinarily be allowed an opportunity to

contest a claim on merits, especially where issues of possession

and ownership are in dispute. The denial of such an opportunity

due to procedural lapses and irregularities amounts to denial of

substantial rights.

2024 INSC 814

21. In the facts of the case, it is to be noted that petitioner would

not stand to derive any benefit by not filing counter and contesting

the matter more particularly having got a judgment and decree in

his favour and also being handed over possession in Execution

Petition.

22. It is settled law that procedural laws are designed to facilitate

justice, and not to frustrate the ends of justice. The Supreme Court

in Kusum vs. Kanchan Devi and Ors 2, had held that ordinarily a

party should not be denied participation in an adversarial system,

unless there is express and specific mandate to that effect in the

language of the statute. The relevant observations are as under:

"6. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.

(2005) 6 SCC 705

The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.

The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justice where the tragic sequel otherwise would be wholly inequitable. - Justice is the goal of jurisprudence - processual, as much as substantive. (See Sushil Kumar V. State Bihar MANU/SC/0028/1975: [1975]3SCR942.

No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. (See Blyth v. Blyth (1966 (1) All E.R. 524 (HL). A procedural law should not ordinarily be construed as mandatory. the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (See Shreenath and Anr. v. Rajesh and Ors. MANU/SC/0286/1998: [1998|2SCR709

Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice."

(emphasis supplied)

23. While echoing this principle in the case of Levaku Pedda

Reddamma and Ors. Vs. Gottumukkala Venkata Subbamma &

Aur 3, the Hon'ble Supreme Court had held that it was appropriate

to impose costs in case there was a delay.

24. Therefore, taking into consideration that the conduct of the

petitioners herein in not filing a counter to E.A. No. 680 of 2018

has delayed the adjudication of the said application, this Court is of

the view that the prejudice caused to the respondent can be

compensated by way of costs.

25. Accordingly, this Civil Revision Petition is allowed. The

Order of Trial Court dated. 21.04.2023 in E.A. No. 8 of 2022 in