Dismissed

C Yashoda v. U Sudheera

Andhra Pradesh HC1 Jul 2022CRP/1394/2021

Case brief

AI extract

What is this about?

Hon'ble Justice Ninala Jayasurya in CRP No.1394 of 2021 dismissed the petition challenging the condonation of a 430-day delay in filing an application to set aside abatement of an appeal. The court held that courts approach such applications liberally to ensure justice, distinguishing the lenient parameters from stringent limits for filing initial appeals.

What did the court decide?

Civil Revision Petition dismissed; no order as to costs.

C Yashoda Vs U Sudheera — Civil Procedure and Limitation | Andhra Pradesh HC (2022)

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HONOURABLE SRI JUSTICE NINALA JAYASURYA CIVIL REVISION PETITION No.1394 of 2021

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ORDER:-

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The present Revision Petition is preferred against an Order passed in I.A.No.210 of 2019 in A.S.No.17 of 2016 dated 01.12.2021 on the file of the Court of the Judge, Family Courtcum-V Additional District Judge, Tirupati.

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Heard Mr.N.Ranga Reddy, learned counsel for the petitioner and Mr.Srinivas Basava, learned counsel appearing for respondent Nos.1 to 3.

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The petitioner herein is respondent No.1 in the above referred I.A. The respondents herein filed the said I.A., under Section 5 of the Limitation Act (for short ‘the Act’) and Section 151 of Code of Civil Procedure (for short ‘C.P.C.’), seeking to condone the delay of 430 days in presenting the application for setting aside abatement of the appeal against the 5^th appellant which occurred due to non-impleadment of the legal heirs of deceased-5^th appellant. The petitioner/1^st respondent filed her counter opposing the said application. The learned Appellate Court after considering the matter condoned the delay and allowed the petition on payment of costs of Rs.1,000/- to the petitioner herein. Aggrieved by the said Orders, the present Revision Petition came to be field.

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Learned counsel for the petitioner submits that the Order of the learned Appellate Court in condoning the huge delay of 430 days is perverse and liable to be set aside. He submits that the respondent Nos.1 to 3 herein were negligent and deliberately protracting the proceedings on one pretext or the other and application seeking to condone the delay is lacking in bona fides. He further submits that in the absence of proper explanation for each day’s delay, the same cannot be condoned, in a causal manner. He submits that the reasons as assigned by the respondents, would not satisfy the requirements of sufficient cause or justify the condonation of delay. He further submits that the learned Appellate Court failed to appreciate the matter in a correct perspective and as a result of condoning the huge delay of 430 days, the rights and interest of the petitioner would be seriously prejudiced.

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The learned counsel placing reliance on the decisions in Kshitij Infraventures Pvt. Ltd., v. Mrs.Khorshed Shapoor Chenai and Others¹ and Jampala Poornanada Venkateswara Prasad v. Roshini Chit Funds and Finance Private Limited and Others² submits that the Order under Revision is liable to be set aside.

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Per contra, the learned counsel for the respondent Nos.1 to 3 supported the Order under Challenge, inter alia,

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1 2022 (1) ALT 533 (D.B.) (T.S.)

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2 2021(1) ALT 650 (D.B.) (A.P.)

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contending that the learned Appellate Court after due consideration of the matter and by relying on the decisions of the Hon’ble Supreme Court was inclined to condone the delay of 430 days by recording cogent reasons. He submits that under the said circumstances, no interference is called for unless this Court comes to a conclusion that the Order under Revision is perverse or suffers from material irregularities, which are not present in the case on hand. He further submits that the application filed by the respondents herein is to condone the delay in filing the application for setting aside the abatement of appeal and in such cases, it is settled law that the delay in making such applications shall be dealt with more leniently than the applications seeking condonation of delay in filing the appeals. In any case, the learned counsel submits that as opined by the appellate Court, no prejudice would be caused to the petitioner, if the delay in filing the application to set aside the abatement of appeal is condoned. The learned counsel, making the said submissions, seeks dismissal of the Revision Petition.

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This Court had considered the submissions of the learned counsel for the respective parties, perused the material and also gone through the decisions, on which reliance is placed by the learned counsel for the petitioner.

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At the outset, it may be noted and as rightly pointed out by the learned counsel for the respondents, in considering the

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reasons for condonation of delay, Courts are more liberal with reference to applications for setting aside the abatement, than the other cases. It is also trite law that the word ‘sufficient cause’ in Section 5 of the Act should be construed liberally, so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the concerned parties.

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9. In Mithailal Dalsanagar Singh v. Annabai Devaram

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Kini³ , the Hon’ble Supreme Court in categorical terms observed that the Courts have to adopt “a justice oriented approach dictated by the upper most consideration that ordinarily a litigant ought not to be denied an opportunity of having a ‘lis’ determined on merits, unless, he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitle himself from seeking the indulgence of the Court.”

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In N.Balakrishnan v. M.Krishna Murthy⁴ , the Hon’ble Supreme Court opined that in matters pertaining to condonation of delay, the word ‘sufficient cause’ should be construed liberally. The Hon’ble Court, inter alia, held 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 only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is

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3 AIR 2003 SC 4244

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4 1998 (7) SCC 123

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the only criterion. Sometimes delay of the shortest range may be un-condonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. In every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor”.

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The Hon’ble Supreme Court also observed that while condoning the delay, the Court should also keep in mind the consequent litigation expenses to be incurred by opposite party and should compensate him accordingly.

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A conspectus of the relevant Case Law in the context of condonation of delay would go to show that the word ‘sufficient cause’ should receive a liberal construction to meet the ends of justice and the approach of the Courts should be pragmatic, however with a caveat that the delay due to a deliberate act, mala fide intention deserves no indulgence.

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Apart from the above stated legal position, it is to be noted that in the present case, the learned appellate Court also relied on the decisions of the Hon’ble Supreme Court and applying legal principles to the facts of the present case, has taken a view that the delay in filing the application to set aside

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the abatement of appeal deserves to be allowed. This Court see no reason to take a different view nor the Order under Revision suffers from any irregularity or perversity warranting interference by this Court. The judgment of the Hon’ble Division Bench in Kshitij Infraventures’s case referred to above was in respect of a case wherein an application filed to condone the delay of 1691 days in preferring the appeal against the judgment and decree of the trial Court was the subject matter. The Hon’ble Division Bench, in the attending facts and circumstances of the case, was not inclined to condone the delay. The said decision in the considered opinion of this Court is not applicable to the facts of the present case, as it relates to application to condone the delay in setting aside the abatement of appeal, but not delay in filing the appeal, where the parameters for condonation are most stringent. The other decision in Jampala Poornanda Venkateswara Prasad’s case referred to above is also not of much aid, as the learned Judge in the attending facts and circumstances of the case came to a conclusion that the petitioner therein was negligent, designedly protracting the proceedings and therefore, disentitled to claim discretionary relief under Section 5 of the Act.

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In the case on hand the learned Appellate Court, taking into consideration, the matter in its entirety and by placing reliance on the decisions of the Hon’ble Supreme Court,

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condoned the delay and this Court finds no reason to substitute

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the well considered view of the learned Appellate Court.

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