Allowed

Grandhi Venkata Narasimha Rao v. Grandhi Bhavani Prasad

Andhra Pradesh HC6 Sept 2023CRP/1249/2022

Case brief

AI extract

What is this about?

The High Court allowed revisions under Article 227 against a trial Court order dismissing a partition suit restoration petition and limitation condonation application. The Court held that the death of counsel and lack of malice constituted sufficient cause for delay, setting aside the trial Court's rigid approach to Technical defaults in service of summons.

What did the court decide?

Both revisions allowed; impugned order dated 24.01.2022 in the applications to restore the suit and condone delay set aside.

Grandhi Venkata Narasimha Rao Vs Grandhi Bhavani Prasad — Partition | Andhra Pradesh HC (2023)

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THE HON’BLE Ms. JUSTICE B.S.BHANUMATHI

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C. R. P Nos.1249 & 1257 of 2022

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COMMON ORDER :

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These two revisions, under Article 227 of the Constitution of India, are filed against the order, dated 24.01.2022, dismissing the petitions in I.A.Nos.922 & 923 of 2019 in O.S.No.26 of 2014 on the file of the Court of X Additional District Judge, Narsapur, West Godavari District, filed under Order IX Rule 4 read with Section 151 CPC by the petitioners/plaintiffs to set aside the dismissal order, dated 01.08.2017, passed against the 2^nd defendant for nonpayment of batta to serve summons to the 2^nd defendant; and under Section 5 of the Limitation Act to condone delay of (709) days, i.e., from 31.08.2017 to 09.08.2019 in filing petition to restore the suit against the 2^nd defendant.

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Heard Sri Siva Nagarjuna Sidhadapu , learned counsel for the revision petitioner/plaintiff, Sri Turaga Sai Surya , learned counsel for the 1^st respondent, and Ms. Gouthami Surapureddy , learned counsel for the 2^nd respondent.

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The plaintiffs 1 & 2 filed the suit for partition against the defendants 1 to 9. The suit was dismissed against the 2^nd defendant on 01.08.2017, for non-payment of batta for service of summons to the 2^nd defendant. As such, both petitions in I.A.No.922 of 2019 & 923 of 2019 are filed stating that there are no willful laches either

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BSB, J C.R.P.No.1249 & 1257 of 2022 for non-payment of batta or in filng petition under Order IX Rule 4 CPC since the counsel for the plaintiffs, by name, Sri Komanduri Srinivasa Rao died in the year 2018 and later, they engaged the services of Sri P. Rama Rao, learned counsel, who advised them to file the petitions.

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The petitions were opposed by the 1^st defendant by filing a counter admitting that Sri Komanduri Srinivasa Rao, Advocate, filed the suit on behalf of the plaintiffs and later, he died in the year 2018. The 1^st defendant further stated that the summons to the 2^nd defendant were not served for non-payment of batta and even after dismissal of the suit, the plaintiffs who were fully aware of the dismissal of the suit, did not intentionally file any batta within the time granted by the Court, and therefore, at this stage, they have no right to file the petition since as per Order IX Rule 5 CPC, petitioners have to file petition for applying fresh summons within seven days after the summons were un-served and the said provision is mandatory, and Section 5 of the Limitation Act has no application to Order IX Rule 5(1) CPC. Therefore, the 1^st defendant contended that neither the delay can be condoned nor the order dismissing the suit for default be set aside. It is also stated that the delay is not 709 days but it is 747 days. It is further stated that the petitioners have not stated any valid reason for condonation of

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BSB, J C.R.P.No.1249 & 1257 of 2022 delay which is abnormal. Hence, the 1^st defendant prayed to dismiss the petitions.

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After hearing both parties, the trial Court dismissed firstly, the petition under Section 5 of the Limitation Act and consequently, the other petition under Order IX Rule 4 CPC. The trial Court observed that in the present case, the petitioners have simply filed a petition to condone delay of 709 days without showing any sufficient reason or credible explanation and that the Court had not found any ground to allow the petition.

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Having been aggrieved by the orders in both the petitions, separate revision petitions were filed as stated supra.

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The learned counsel for the revision petitioner submitted that the trial Court ought to have adopted a lenient approach in condoning the delay since there are no willful laches on the part of the petitioner and moreover, the suit is still pending. He further submitted that taking advantage of the dismissal of the suit against the 2^nd defendant, the 1^st defendant filed petition under Order VII Rule 11 CPC to reject the whole suit, and thereby, great hardship and loss would be caused to the petitioner. He placed reliance on the decision of this Court in Srinivas Kumar Mowle v.

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BSB, J

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C.R.P.No.1249 & 1257 of 2022 Chandrasekhar Mowle and others¹ in support of his submission that the procedural law is a hand-maid of justice but not to frustrate the ends of justice. In the cited decision, para 12 of the decision of the Supreme Court in Bhagwan Swaroop and others Vs. Mool Chand and others [AIR1983SC355] was referred as follows:

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"12. It is no doubt true that a Code of Procedure is designed to facilitate justice and further its ends and it is not a penal enactment for punishment and penalty and not a thing designed to trip people up'. Procedural laws are no doubt devised and enacted for the purposes of advancing justice. Procedural laws, however, are also laws and are enacted to be obeyed and implemented. The laws of procedure by themselves do not create any impediment or obstruction in the matter of doing justice to the parties. On the other hand, the main purpose and object of enacting procedural laws is to see that justice is done to the parties. In the absence of procedural laws regulating procedure as to dealing with any dispute between the parties, the cause of justice suffers and justice will be in the state of confusion and quandary. Difficulties arise when parties are at default in complying with the laws of procedure. As procedure is aptly described to be the hand-maid of justice, the Court may in appropriate cases ignore or excuse a mere irregularity in the observance of the procedural law in the larger interest of justice. It is, however, always to be borne in mind that procedural laws are as valid as any other law and are enacted to be observed and have not been enacted merely to be brushed aside by the Court. Justice means justice to the parties in any particular case and justice according to law. If procedural laws are properly observed, as they should be observed, no problem

12001 (3) ALD 670

BSB, J

C.R.P.No.1249 & 1257 of 2022 arises for the Court for considering whether any lapse in the observance of the procedural law needs to be excused or overlooked. As I have already observed depending on the facts and circumstances of a particular case in the larger interests of administration of justice the Court may and the Court in fact does, excuse or overlook a mere irregularity or a trivial breach in the observance of any procedural law for doing real and substantial justice to the parties and the Court passes proper orders which will serve the interests of justice best".

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Learned counsel further placed reliance on the decision of the Supreme Court in N. Balakrishnan v. M. Krishnamurthy² , in support of his argument that the petitioner could establish sufficient cause and the reasons which ought to have been favourably considered by the trial Court. It was held at para No.9 as follows:

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“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 only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncontainable 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 regional 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

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2 AIR 1998 SC 3222

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BSB, J C.R.P.No.1249 & 1257 of 2022 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.”

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The learned counsel for the 1^st respondent/1^st defendant submitted that no reason was assigned by the petitioner for the delay or disposal of the suit for default, except stating that they failed to notice that the suit was dismissed for default. He further submitted that it is only after the 1^st respondent filed petition in I.A.No.666 of 2021 on 07.07.2019 under Order VII Rule 11 CPC to reject the plaint, these petitions to restore the suit and to condone delay were filed on 09.08.2019. He placed reliance on the decision in Basawaraj and Ors. Vs. The Spl. Land Acquisition Officer³ in

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support of his submissions that when there is no sufficient cause, delay cannot be condoned, wherein at paras 8, 10 & 12, it was held as follows:

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“8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated.

3 2013 (14) SCC 81

BSB, J

C.R.P.No.1249 & 1257 of 2022 Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a Judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible.

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(Vide: Chandigarh Administration and Anr. v. Jagjit Singh and Anr. [AIR 1995 SC 705], Anand Button Ltd. v. State of Haryana and Ors. [AIR 2005 SC 565]; K.K. Bhalla v. State of M.P. and Ors . [AIR 2006 SC 898]; and Fuljit Kaur v. State of Punjab [(AIR 2010 SC 1937)].

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In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] this Court explained the difference between a "good cause" and a "sufficient cause" and observed that every "sufficient cause" is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof that that of "sufficient cause".

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It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim "dura lex sed lex" which

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BSB, J C.R.P.No.1249 & 1257 of 2022 means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.”

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He further submitted that the right accrued to the 1^st defendant to seek rejection of the plaint arose because the suit against one of the defendants was dismissed and consequently, the contention that the plaint is liable to be rejected would be frustrated, if the petitions are appreciated with a lenient approach.

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The learned counsel representing the 2^nd respondent submitted that no notice was given to 2^nd respondent/2^nd defendant to contest the petition; however, the orders impugned cannot be interfered with in these revisions. He adopted the arguments of the 1^st defendant.

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Since when the suit was dismissed against the 2^nd defendant for nonpayment of process fee for service of summons on the 2^nd defendant, the petitions in I.A. Nos. 922 and 923 of 2019 were filed before the trial Court, it needs to be addressed at the first instance. Admittedly, no batta was paid for service of summons to 2^nd defendant in the suit. However, she was served with notice in the revision petition and she made appearance through advocate, yet no written objections were filed to oppose why the relief should not be granted. The only objection raised now is that she was not even

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BSB, J C.R.P.No.1249 & 1257 of 2022 sent notice in those petitions. Further, she adopted arguments advanced by the 1^st defendant. Therefore, in substance, if the arguments advanced by 1^st defendant are answered, the same benefit would go to her. That apart, Order IX Rule 4 of CPC is relevant for exercising discretion by the trial Court in so far as the interest of the plaintiff to proceed with the suit as against the 2^nd defendant. Therefore, normally no notice is required to deal with the petition under Order IX rule 4 of Code of Civil Procedure. However, when it is filed along with a petition under Section 5 of Limitation Act, a notice may be required as the opposite party can raise legal objections to show that there is no sufficient cause to the plaintiff to condone the delay. As she adopted the stand of the 1^st defendant and since it is a suit for partition and the suit as against the other defendants is still pending, non-service of notice in those petitions to the 2^nd defendant would not cause any prejudice to her interest. Thus, in view of the above reasons, the relief claimed in both petitions need not be declined on that ground, if the same can be otherwise granted.

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Next, coming to Section 5 of the Limitation Act, the reasons stated by the petitioner for the delay is the death of the learned counsel earlier engaged and noticing the dismissal of the suit by the subsequent counsel, only recently, before filing all these petitions. It is vehemently contended by the respondents that only when an

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BSB, J C.R.P.No.1249 & 1257 of 2022 application under Order I Rule 9 read with Section 151 CPC in I.A.No.666 of 2019, these petitions were filed. While examining sufficient cause or sufficient reason, the reasons assigned by the petitioner in the present case are to be examined in the light of the objections raised. The fact that the earlier counsel died is admitted. It is only after engaging the subsequent advocate; these petitions were filed immediately thereafter. Of course, filing of I.A.No.666 of 2019 shall make the petitioner aware of the dismissal of the suit as against the 2^nd defendant. For that reason, no mala fides can be attributed. It may be a lapse in not noticing the dismissal of suit as against 2^nd defendant and taking proper steps thereafter, cannot be attributed to the respondent who is negligent in taking appropriate steps. In the present case, the facts on record did not show that the petitioner is personally responsible for anything in any manner in causing the delay. If there is any lapse, in taking proper steps, it should not cause miss carriage of justice. Every Court should endeavor to decide the matter on merits and not by mere pragmatic and technical approach to scuttle the matter at the threshold when there is no deliberate negligence or lapse on the petitioner, for reasons beyond the control or reach of the petitioner. Thus, it cannot be held that there is sufficient reason for the delay.

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Thus, on an examination of the facts and circumstances, the relief cannot be refused on too technical approach. However, in the

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BSB, J C.R.P.No.1249 & 1257 of 2022 present case, viewing the matter from any angle, it can be held that there is sufficient cause for the delay and also for non-payment of process for service of notice on the 2^nd defendant. As such, the approach of the trial Court in dismissing the petitions needs to be interfered with as it failed to exercise its discretion against the well settled principles of law. Thus, for the foregoing reasons, both the petitions are to be allowed by settings aside the orders impugned in the revisions.

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Accordingly, both the revisions are allowed, setting aside the order, dated 24.01.2022 passed in I.A.Nos.922 & 923 of 2019 in O.S.No.26 of 2014 and the said petitions are allowed, as prayed for.

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There shall be no order as to costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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___________________ B. S. BHANUMATHI, J

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06-09-2023

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RAR/RMD

Grandhi Venkata Narasimha Rao v. Grandhi Bhavani Prasad

Case brief

What is this about?

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Grandhi Venkata Narasimha Rao v. Grandhi Bhavani Prasad

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