Dismissed

Yemineni Subrahmanyam v. Kota Seetha Ramaiah

Andhra Pradesh HC15 Oct 2019CRP/6961/2018

Case brief

AI extract

What is this about?

This revision petition challenged the dismissal of a petition to condone a 1868-day delay in setting aside an ex parte decree. The High Court held that the petitioner failed to adduce evidence for alleged grounds (agreement, fraud) and displayed negligence by not appearing in the suit or promptly filing for condonation after serving notice in execution proceedings.

What did the court decide?

Civil Revision Petition dismissed; no costs; interim orders vacated; miscellaneous petitions pending if any shall stand closed.

Yemineni Subrahmanyam Vs Kota Seetha… — Contract and Commercial Disputes | Andhra Pradesh HC (2019)

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MVR,J

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C.R.P.No.6961 of 2018

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HON’BLE SRI JUSTICE M. VENKATA RAMANA

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CIVIL REVISION PETITION No.6961 OF 2018

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ORDER:

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This Civil Revision Petition is directed against order of the Court of learned Principal Junior Civil Judge, Repalle, Guntur District, in I.A.No.434 of 2016 in O.S.No.217 of 2010 dated 06.07.2018.

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The above petition was filed under Section 5 of Limitation Act to condone delay of 1868 days in filing the petition under Order IX Rule 13 CPC to set aside ex parte decree dated 31.08.2010 passed in the suit. The defendant is the petitioner, who filed the above petition against the respondent in the trial Court. The respondent as the plaintiff instituted a suit for perpetual injunction against the petitioner to restrain him from interfering with his peaceful possession and enjoyment of the plaint schedule property. An extent of Ac.1.00 cents of wet land out of Ac.3.92 cents in Arumbaka village in Guntur District is the plaint schedule land. An ex parte decree was passed against the petitioner and in favour of the respondent on 31.08.2010, since the respondent did not choose to appear and contest the suit.

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The respondent has also laid E.P.No.91 of 2014 in O.S.No.217 of 2010 in execution of the above decree against the petitioner under Order XXI Rule 22 and 32 CPC alleging that the petitioner had violated the decree, when he tried to interfere with the peaceful possession and enjoyment of the plaint schedule land, of the respondent on 16.09.2014. This execution petition is stated to be pending in the Executing Court.

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The petitioner appeared in the above execution proceedings upon service of notice on 18.10.2014 and resisted the same filing a counter through his advocate.

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At that stage, in October 2015 (precise date of filing I.A.No.434 of 2015 is not referred to in the order under revision nor material papers filed in the CRP disclose the same) the petitioner choose to file the above petition under Section 5 of Limitation Act assigning the reasons that immediately after receiving suit summons, he approached the respondent, who offered to settle the matter by registering a sale deed in his favour pursuant to an agreement dated 18.03.2002. He further claimed that under the above agreement, out of total sale consideration of Rs.1.80 lakhs, he had paid Rs.1.30 lakhs towards advance and balance has to be paid at the time of execution of regular sale deed. He further stated that though he requested the respondent in that context to execute a sale deed in his favour upon receiving balance sale consideration, the respondent delayed on one pretext or other.

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Another reason assigned by the petitioner in the trial Court was that the sale deed in respect of the plaint schedule land was executed by his father towards a loan transaction in favour of the respondent and that the said sale deed remained with the respondent, who was never in possession and enjoyment of the plaint schedule land, which his father was enjoying during his lifetime, and upon his death, he continued to enjoy the same as rightful owner. He further contended that the respondent choose to file execution petition four years after the decree was passed in his favour and even after laying execution petition, he had approached the respondent to settle the matter, in vain. Stating that he is an illiterate and in view of the above reasons since he could not appear in the suit and contest, according to him, delay occasioned of 1868 days in filing petition under Order IX Rule

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C.R.P.No.6961 of 2018

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13 CPC be condoned since the respondent played fraud on him, to make a wrongful gain.

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Resisting the above petition, the respondent filed counter denying all such reasons assigned by the petitioner. He stated in his counter that the petitioner was served not only summons in the suit but also an order of ad-interim injunction as well as notice in I.A.No.588 of 2010, granted on 14.07.2010, on which he did not choose to appear in the suit nor contest. He further contended that the petitioner did not make out sufficient cause to condone such huge delay and that the delay has not been properly explained in as much as the petitioner choose to file the petition an year after receiving notice in the execution petition. Referring to circumstances leading to institution of E.P.No.91 of 2014 in execution of the decree in the suit on account of violation by the petitioner, the respondent contended that the petitioner is intending to cause obstruction to him to enjoy the fruits of the decree and to harass him under the pretext of this petition.

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In the trial Court, the petitioner did not choose to let-in any evidence. However, the respondent entered the box, examined himself as R.W.1, while relying on Ex.R1 to Ex.R6. He was not crossexamined on behalf of the petitioner. The order under revision has discussed about opportunity given to the petitioner to cross-examine the respondent in the course of enquiry, while also recording the fact that on behalf of the petitioner, no evidence was reported on 12.09.2017.

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Upon considering the material as well as the contentions set forth on behalf of both the parties, learned trial Judge did not accept the reasons assigned by the petitioner holding that no evidence has

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been adduced to support such reasons and finding that the conduct of the petitioner reflected his negligence, who had remained quiet intentionally, though he was served summons in the suit. Thus observing that the petitioner failed to explain sufficient cause that prevented him to approach the Court and making out his bonafides, the petition was dismissed.

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In this revision petition on behalf of the petitioner, Sri Emani Subrahmanyam, learned counsel with reference of the same reasons contended that the trial Court failed to appreciate the matter in proper perspective and having regard to the fact that the property in dispute, being a valuable wet land, which the respondent had agreed to sell under an agreement to the petitioner for valuable consideration, refusal to accept the reasons assigned by the petitioner, is not proper. It is further contended that basing on the ex parte decree, the respondent has also laid Execution Petition with a malafide intention and that the petitioner be given an opportunity in the facts and circumstances, by allowing this revision petition.

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On behalf of the respondent, Sri V.V.Satish, learned counsel supported the order under revision stating that there is absolutely no material to accept the reasons assigned by the petitioner nor they are proved to be satisfactory. It is further contended that there is no dispute as to service of summons on the petitioner, on which the petitioner deliberately did not choose to contest. Pointing out that there is clear want of diligence in prosecuting the matter by the petitioner, who did not choose to cross-examine the respondent when he was examined as R.W.1 and denying the allegation as to compromise in the matter, it is requested to dismiss this revision petition.

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It is further contended for the respondent that even after appearance in the execution petition, upon service of notice on 18.10.2014, the petitioner did not choose to immediately file a petition under Section 5 of Limitation Act along with another petition under Order IX Rule 13 CPC to set aside the decree and filing the petition an year later, is also a factor to consider the negligence on the part of the petitioner in this respect.

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Now, the point for determination is: - “Whether the petitioner made out a sufficient cause to condone delay of 1868 days in filing a petition under Order IX Rule 13 CPC to set aside ex parte decree dated 31.08.2010?”

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Having regard to nature of the reasons alleged by the petitioner in the affidavit filed in support of the petition and as sought to be canvassed in this revision, the petitioner should have entered the witness box and should have let-in supporting evidence. Mere allegation of alleged settlement, which he claimed that the respondent had offered, while asking him not to appear in the Court upon service of suit summons, is not sufficient. It is further to be seen that it was not only the suit summons but also an order of ex parte injunction granted in favour of the respondent in the suit along with notice, was served on the petitioner. In such circumstances, the petitioner should have noticed the seriousness in the matter.

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Similarly the petitioner should have let-in evidence with reference to his claim that the sale deed in respect of the plaint schedule land was executed by his father in favour of the respondent under a loan transaction, while claiming that the sale did not intend to convey right, title and interest to the petitioner and with reference

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to the alleged agreement for sale for Rs.1.80 lakhs under which the respondent had agreed to sell away the suit land to the petitioner.

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When these circumstances are based on facts, which the respondent had chosen to dispute and question, placing reliance on his interested affidavit in support of his claim in the petition, is not sufficient. Therefore, these alleged reasons have to be rejected, since not proved.

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When these reasons are rejected, the next question to be considered in the same context is the conduct of the petitioner. The above circumstances themselves offer that the conduct of the petitioner was not such that it could allow indulgence of the Court in his favour. He had chosen to contest E.P.No.91 of 2014, which was laid by the respondent in execution of the decree dated 31.08.2010 in the suit alleging violation of its terms and interference with his possession and enjoyment of the plaint schedule land. It is not in dispute that the petitioner was served notice under Order XXI Rule 22 CPC on 18.10.2014 in the above E.P. It was laid four years after passing of the decree. The petitioner cannot take advantage of this fact, to contend that the respondent deliberately filed execution petition in such manner four years after passing of the decree.

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It is also not in dispute that the petitioner appeared through his advocate in execution proceedings. Thereafter only during October 2015, he chose to file the petition under Section 5 of Limitation Act. His version that even during pendency of execution petition, he had approached the respondent to settle the matter, remained only his interested version without any supporting or corroborating material or evidence.

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It is clearly demonstrative of the negligence on the part of the petitioner in failing to approach the Court with all necessary promptitude. In these circumstances and as rightly pointed out by the respondent, the deliberate and wanton inaction on the part of the petitioner questions his diligence to pursue the matter in right perspective.

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When all the circumstances are considered together, as rightly observed in the order under revision, it is manifest that intentionally and deliberately, the petitioner allowed the delay to set-in to such an extent and of 1868 days, in filing the petition under Order IX Rule 13 CPC. Thus, the petitioner failed to make out sufficient cause nor pursued the matter diligently, as are required to be established under Section 5 of Limitation Act to condone such huge delay of 1868 days. Absolutely, there are no reasons to interfere with the order under revision.

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In the result, the Civil Revision Petition is dismissed and in the circumstances, no costs. All interim orders stand vacated. Miscellaneous Petitions, pending if any, shall stand closed.

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__________________________ M. VENKATA RAMANA, J

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Dt:15.10.2019 Rns

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C.R.P.No.6961 of 2018

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HON’BLE SRI JUSTICE M. VENKATA RAMANA

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CIVIL REVISION PETITION No.6961 OF 2018

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Date:15.10.2019

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Rns

Yemineni Subrahmanyam v. Kota Seetha Ramaiah

Case brief

What is this about?

What did the court decide?

Yemineni Subrahmanyam v. Kota Seetha Ramaiah

Case brief

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What did the court decide?

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