Allowed

Shaik Allabakash v. Shaik Anwar Basha

Andhra Pradesh HC1 Dec 2021CRP/1283/2021

Case brief

AI extract

What is this about?

The High Court allowed the civil revision, setting aside the appellate court's order condoning delay. The High Court remanded the matter to the District Judge to decide if the initial 182-day delay in filing the application to set aside the ex parte judgment was properly explained, noting the appellate court overlooked this period.

What did the court decide?

The civil revision is allowed. The principal district court's order is set aside. The matter is remanded to the Principal District Judge, Kadapa, for a decision on the initial 182 days of delay.

Shaik Allabakash Vs Shaik Anwar Basha — Civil Procedure and Limitation | Andhra Pradesh HC (2021)

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HON'BLE SRI JUSTICE R RAGHUNANDAN RAO CIVIL REVISION PETITION No. 1283 OF 2021

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ORDER :

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The petitioner herein had filed O.S. No. 152 of 2012 on the file of the Additional Senior Civil Judge’s Court, Kadapa against the respondent herein for declaration of title and recovery of possession of the suit schedule property. The respondent had initially participated in the suit. Thereafter, the trial court, allowed the suit on merits in the absence of the respondent on 03.05.2019. Thereafter, the respondent herein filed an application to set aside the said decree under the provisions of Order 9 Rule 13 read with Section 151 of CPC. As there was a delay in filing this application, the respondent had also filed I.A. No. 699 of 2019 to condone the delay of 182 days in filing the said application for setting aside the ex parte judgment.

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The trial court took the view that the Judgment was delivered on merits and not an ex parte order, and as such, held that neither the application under Order 9 Rule 13 read with Section 151 of CPC nor the application to condone the delay in filing the application under Order 9 Rule 13 would be maintainable. Accordingly, the trial court dismissed I.A. No.699 of 2019 on 04.11.2020.

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The respondent had thereupon filed an appeal before the appellate court along with an application numbered as I.A No. 80 of 2021, under Order 41 Rule 3-A CPC for condonation of delay of 576 days in filing the appeal. This application was contested by the petitioner.

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The appellate court after considering the contentions raised by both sides allowed the said application. Aggrieved by the said order dated 26.10.2021 in I.A.No. 80 of 2021, the petitioner is before this Court.

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Sri G. Ramesh Babu, the learned counsel appearing for the petitioner would submit that the appellate court had wrongly applied the provisions of Section 14 of the Limitation Act to condone the delay relating to the period for which I.A. No. 699 of 2019 was pending before the trial court. He further submits that apart from this lacuna, the order under revision suffers from another flaw. He submits that the appellate court while condoning the delay for the period for which I.A.No.699 of 2019 was pending, had not considered the initial delay of 182 days, which was the period between the passing of the Judgment and decree and the filing of I.A. No. 699 of 2019.

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Sri Balaji Medimella, learned counsel appearing for the respondent supports the order of the appellate court and contends that in view of the various pronouncements of the

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Hon’ble Supreme Court including BHIVCHANDRA SHANKAR MORE Vs. BALU GANGARAM MORE AND Others¹ such applications should be considered liberally as it would be appropriate to decide the disputes on merits rather than technicalities.

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The fact remains that I.A. No. 699 of 2019 was kept pending for quite some time and nothing has been shown to this Court to hold that the said application was filed for any mala fide reasons. The said application appears to have been filed in good faith for condonation of delay in filing the application to set aside the ex parte order.

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In the circumstances, the condonation of the period for which I.A.No. 699 of 2021 was pending, the period required for obtaining certified copies of the said order and approaching the appellate court, does not require any interference by this Court.

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As far as the question of application of Section 14 of the Limitation Act is concerned, the said provision cannot be kept aside merely on the ground that the said provision has not been cited in the application filed by the respondent. In any event, the application has been filed under Order 41 Rule 3-F CPC, and as such, it cannot be said that non mention of

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1 ( 2019) 6 Supreme Court Cases 387

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Section 14 of the limitation Act is fatal to the case of the respondent.

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However, as far as the condonation of delay for the initial period of 182 days mentioned in IA. No. 699 of 2019 is concerned, the same has not been considered by the appellate court. A perusal of the order of the Appellate Court would show that the appellate court, after considering the period for which I.A. No. 699 of 2019 has been pending, had disposed of the application on the basis of condonation of that period.

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In these circumstances, the Civil Revision Petition is allowed setting aside the order of the Principal District Court, Kadapa in I.A. No. 80 of 2021 in the unnumbered appeal suit, and remanded back to the Principal District Judge, Kadapa, for a decision on the question as to whether the initial 182 days of delay in filing the application to set aside the (alleged) ex parte order has been properly explained or not? In the event of the appellate court accepting the explanation of the respondent in regard to this delay, the application I.A. No. 80 of 2021 may be allowed. However, in the event of the appellate court not accepting the explanation for the delay of 182 days, the said application may be dismissed.

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As the matter is being remanded, it would always be open to either parties to raise all such additional grounds and pleadings or place such material as may be necessary before

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the appellate court for proper adjudication of the application.

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There shall be no order as to costs.

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As a sequel, pending miscellaneous petitions, if any, shall

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stand closed.

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_______________________________ JUSTICE R RAGHUNANDAN RAO

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Note: Issue cc in one week Date: 01.12.2021 Psr.

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HON'BLE SRI JUSTICE R RAGHUNANDAN RAO

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(Allowed)

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C.R.P No. 1283 of 2021

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Dated 01.12.2021

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Psr.

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Shaik Allabakash v. Shaik Anwar Basha

Case brief

What is this about?

What did the court decide?

Shaik Allabakash v. Shaik Anwar Basha

Case brief

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What did the court decide?

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