Telangana High Court

Mutyapu Balamani T. Balamani vs Mutyapu Chokkaiah on 28 March, 2025

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

             CIVIL REVISION PETITION No.9 OF 2024

ORDER:

This Civil Revision Petition is filed aggrieved by the order

dated 28.11.2023 in IA.No.681 of 2023 in AS (SR) No.3515 of 2023

passed by the Principal District and Sessions Judge, Ranga Reddy

District at L.B.Nagar,

2. Heard Sri B.Bal Reddy, learned counsel for petitioner and

Sri Gururaj Joshi, learned counsel for the respondent Nos.1 to 3.

No representation on behalf of respondent Nos.10 & 11 despite

service of notice.

3. Brief factual matrix of the case is that petitioner herein filed

a suit in O.S.No.132 of 2006 on the file of Senior Civil Judge at

Chevella against the respondents herein seeking partition of the

suit schedule property and the said suit was dismissed by the

trial Court vide judgment and decree dated 05.12.2022. Aggrieved

by the same, petitioner herein preferred appeal vide

A.S.(SR).No.3515 of 2023 along with an application-I.A.No.681 of

2023 for condonation of delay of 18 days in filing the said appeal.

The first Appellate Court vide impugned order dated 28.11.12023

dismissed I.A.No.681 of 2023 on the ground that except saying LNA, J

that due to ill-health, petitioner could not approach her counsel

and file an appeal within a period of limitation, no material was

placed on record in support of the said contention. Aggrieved by

the same, present Civil Revision Petition is filed.

4. Learned counsel for petitioner contended that petitioner

herein could not prefer an appeal within time as she was

suffering with health issues. He further contended that along

with the present revision, an application in I.A.No.1 of 2024 is

filed to receive the Medical Certificate, dated 11.12.2023, which

shows that the petitioner was suffering with urinary tract

infection with gastritis and the doctors advised her to take rest for

three weeks from 09.02.2023. However, said certificate was not

filed before the first Appellate Court. It is further contended that

valuable rights of the petitioner in respect of immovable property

are involved, therefore, the first Appellate Court ought to have

taken a liberal view while dealing with an application for

condonation of delay.

5. In support of his contention, learned counsel for petitioner

relied upon the decision of a learned single Judge of erstwhile LNA, J

High Court of A.P., in Gangarapu Karenna v. Jami Karuvu and

another 1, wherein it was observed that the Court below ought to

have displayed a somewhat liberal approach in dealing with the

application for condonation of delay. Under Section 5 of

Limitation Act, 1963, a fair amount of discretion is vested in the

Courts while dealing with such applications and the Courts

should be neither too liberal nor too technical and pedantic in

dealing with the applications for condonation of delay. In the said

case, there was a delay of 13 days in filing appeal. Initially, the

first Appellate Court dismissed the said application on the

ground that mere ignorance is not an excuse and that nothing

prevented him from approaching his counsel and filing the

appeal in time, and on revision, this Court allowed the revision

and condoned the delay. The learned counsel for petitioner

finally prayed to allow the revision and set aside the impugned

order.

6. Per contra, learned counsel for respondent Nos.1 to 3

contended that except saying that due to ill-health of the

petitioner, the delay was occurred, no document or material was

placed on record and therefore, learned first Appellate Court has

2011 (4) ALD 515 LNA, J

rightly dismissed the application and no ground is made out to

interfere with the impugned order.

7. Perusal of the record would disclose that petitioner filed a

suit in O.S.No.132 of 2006 on the file of Senior Civil Judge at

Chevella, Ranga Reddy District, for partition of the suit schedule

property and the said suit was dismissed vide judgment and

decree dated 05.12.2022. Aggrieved by the same, petitioner

preferred appeal in A.S.(SR).No.3515 of 2023 before the Principal

District and Sessions Judge, Ranga Reddy, along with an

application for condonation of delay 18 days in filing the appeal,

however, the first Appellate Court has dismissed the application

on the ground that no material is placed in proof of ill-health of

the petitioner for condoning the delay of 18 days.

8. In this context, it is relevant to refer to the judgment of the

Hon'ble Supreme Court in N.Balakrishnan Vs.

M.Krishnamurthy , wherein at paras 9 and 10 it is held as

hereunder:

"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

AIR 1998 Special Court 3222 LNA, J

only if the delay is whtin a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes dealy of 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 is not because on the expiry of such time a bad cause would transform into a good cause."

8.1. In the said judgment, the Hon'ble Supreme Court held

that Rules of limitation are not meant to destroy the rights of

parties. They are meant to see that parties do not resort to dilatory LNA, J

tactics, but seek their remedy promptly; that the words "sufficient

cause" under Section 5 of the Limitation Act should receive a

liberal construction so as to advance substantial justice.

9. Applying the proposition laid down by the Hon'ble

Supreme Court in N.Balakrishnan's case (cited supra), in the

instant case, it is to be seen that the petitioner has produced

medical certificate evidencing her ill-health, due to which delay

occurred in preferring the appeal. Therefore, it is axiomatic that

'sufficient cause' has been shown by the petitioner to condone

delay in preferring the appeal.

10. Further, it is relevant to note that since the suit was filed

for partition of the suit schedule property, substantial rights of

the parties are involved and as such, to safeguard the interests of

the party in pursuing their remedy before the Court of law, this

Court deems it appropriate to condone the delay in filing the

Appeal as sufficient cause/plausible explanation is offered by the

petitioner.

11. It is settled principle of law that right of appeal by a party

cannot be thrown out at the threshold purely on technical

grounds, especially for a short delay of 18 days.

LNA, J

12. In the light of the above, this Court is of the considered

opinion that the first Appellate Court ought to have allowed the

application by taking liberal view since the valuable rights of the

petitioner in immovable property are involved. However, the

first Appellate Court failed to exercise the discretion vested with

it and thus, the impugned order is liable to be set aside.

13. Accordingly, the Civil Revision Petition is allowed and the

impugned order dated 28.11.2023 in I.A.No.681 of 2023 in

A.S.(SR) No.3515 of 2023 is set aside. Consequently, I.A.No.681 of

2023 in A.S.(SR).No.3515 of 2023 stands allowed and the first

Appellate Court is directed to entertain the appeal filed by the