The High Court dismissed an interim application to condone a 351-day delay in filing an appeal regarding a dismissed partition suit. The court rejected the application due to irreconcilable contradictions between the affidavits of the petitioners explaining the delay.
Application to condone delay and the subsequent appeal were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE R.RAGHUNANDAN RAO
I.A.No.1 of 2019 AND A.S.No.266 of 2019
ORDER:-
The petitioners herein had filed O.S.No.99 of 2010 before the VIII Additional District Judge, Vijayawada against the respondent herein, for partition of certain properties on the ground that the said properties are joint family properties. This suit was dismissed by a Judgment and decree dated 28.12.2017. Aggrieved by the same, the present appeal has been filed by the petitioners.
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I.A.No.1 of 2019 and A.S.No.266 of 2019
copy to the 1st petitioner and it was only after pursuing the matter that the 1st petitioner was able to obtain the said copy and filed the present appeal, due to which there was a delay of 351 days.
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I.A.No.1 of 2019 and A.S.No.266 of 2019
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status of the suit; that the said counsel assured the 1st petitioner that the 7th defendant had informed the counsel that the matter would be settled amicably out of the Court and the appeal need not be filed against the said decree and judgment dated 28.12.2017; that their advocate had informed them that an application for certified copy of the decree and judgment had already been filed and he would handover the said certified copy as and when the same becomes ready; that in the month of December, 2018 while they were waiting for an amicable settlement, they came to know that the respondents were trying to alienate items 1 to 11 of the suit schedule property to 3rd parties and when they enquired into the issue, their counsel told them that the 7th defendant had informed him that the other respondents were not interested in settlement and that an appeal should be filed; that when they approached the counsel in the trial Court for the certified copy of the judgment and decree, he informed them that by oversight he had not applied for the certified copy and had thereafter applied on 29.12.2018, which was received on 06.02.2019; and that thereafter, the said counsel had informed them that the limitation had expired and the costs awarded by the trial Court to an amount of Rs.1,48,804/- had to be deposited in the trial Court before an appeal could be filed before the High Court and consequently, it took considerable time to arrange the said amount of Rs.1,48,804/-, which is the reason why the appeal was filed with a delay of 351 days.
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I.A.No.1 of 2019 and A.S.No.266 of 2019
in K.Chandra Sekhara Rao & Ors. Vs. District Collector, Hyderabad & Ors1 , State of Andhra Pradesh Vs. A.Swamy Naidu2 , N.Mohan Vs.R.Madhu3 and Bhirchandra Shankar More Vs . Balu Gangaram More and Ors.,4 . The learned counsel for the respondents relied upon the judgments of the Apex Court in Esha Bhatlacharjee Vs Raghunathpur Nafar Academy & Ors., Vs. Managing Committee of Raghunathpur Nafar Academy & Ors.,5 and Brijesh Kumar & Ors. Vs . State of Haryana6 . The learned counsel for the petitioners contended that in view of the judgments cited by him, the law of limitation should be construed liberally to further justice and the counsel for the respondents contended that limitation should be construed strictly.
1 2016 (6) ALD 272
2 (2000) 1 ALD 677
3 AIR 2020 SC 41
4 (2019) 4 ALT 42
5.(2013) 12 SCC 649
- AIR 2014 SC 1612
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I.A.No.1 of 2019 and A.S.No.266 of 2019
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between the parties or misunderstanding of the facts. The 1st petitioner contends that the entire delay was on account of his ignorance of law, the wrong advice given by his counsel in the trial Court and the negligence of the counsel in obtaining the certified copies of the Judgement and Decree. The 2nd petitioner avers that both the 1st and 2nd petitioner relied upon the 7th defendant in the suit to take care of their expenses and also to settle the matter and it was only after she failed to settle the matter that they came forward to file the appeal. It is significant to note that there is not even a whisper about the role of the 7th defendant in the entire affair, in the affidavit of the 1st Petitioner.
___________________________________ JUSTICE R.RAGHUNANDAN RAO
Date : 05-10-2021
RJS
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I.A.No.1 of 2019 and A.S.No.266 of 2019
THE HON’BLE SRI JUSTICE R.RAGHUNANDAN RAO
I.A.No.1 of 2019 in A.S.No.266 of 2019
Date : 05-10-2021
RJS
2 issues framed by the court
Whether the delay of 351 days in filing the appeal should be condoned given the stark contradictions between the affidavits filed by the petitioners.
Whether the conflicting explanations regarding counsel's negligence and reliance on the seventh defendant justify condoning the limitation period.
Colour shows how this judgement treated each authority
K.Chandra Sekhara Rao & Ors. Vs. District Collector, Hyderabad & Ors.Referred¶19
State of Andhra Pradesh Vs. A.Swamy NaiduReferred¶19
N.Mohan Vs.R.MadhuReferred¶19
Bhirchandra Shankar More Vs. Balu Gangaram More and Ors.Referred¶19
Esha Bhatlacharjee Vs Raghunathpur Nafar Academy & Ors.Referred¶19
Brijesh Kumar & Ors. Vs. State of HaryanaReferred¶19
The Petitioners
The Respondents
R.Raghunandan Rao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
