Allowed

B.Haritha v. N.E.Nagendra

Andhra Pradesh HC4 Sept 2023CRP/652/2022

Case brief

AI extract

What is this about?

High Court allowed civil revision petition setting aside trial court's dismissal of condonation application. Ordered automgshall deposit 1/4 of suit amount and file written statement by 29.09.2023 to set aside ex part preliminary decree.

What did the court decide?

Application under Section 5 of Limitation Act allowed on condition of depositing one-fourth of suit amount and filing written statement before 29.09.2023.

B.Haritha Vs N.E.Nagendra — Execution and Attachment | Andhra Pradesh HC (2023)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATlCO^

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MONDAY .THE FOURTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE MS JUSTICE B S BHANUMATHI

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CIVIL REVISION PETITION NO: 652 OF 2022

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Petition under Section 115 of CPC to revise the order dated 23.02.2022 made in I.A.No.550 of 2021 in O.S.No.230 of 2020 on the file of the Court of the Principal Junior Civil Judge at Dhone.

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Between:

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B.Haritha. W/o. Balu, aged 33 years. Occ. Business R/o. H No 2-96, Kamagani Gunta Village Dhone Mandal. Kurnool District ...Petitioner/Defendant AND Goud, aged 34 years, Occ. Business R/o. H No 1- 49. Ramakrishna Puram Village. Pepaully Mandal, Kurnool District

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...Petitioner/Defendant

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...Respondent/Plaintiff

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lA NO: 1 OF 2022

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Counsel for the Petitioner: SRi KASHAPOGU SURESH

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Counsel for the Respondents:

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The Court made the following Order:

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

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Civil Revision Petition No.652 of 2022

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ORDER;

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This civil revision petition is filed by the petitioner/defendant under Section 115 of CPC against the order dated 23.02.2022 dismissing the petition in I.A.No.550 of 2021 in O.S.No.230 of 2020 on the file of the Court of the Principal Junior Civil Judge, Dhone, filed under Section 5 of the Limitation Act to condone the delay of 162 days in filing the petition to set aside the ex. parte preliminary decree dated 01.12.2020 in the suit.

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2. The petitioner is the defendant and the respondent is the plaintiff. The suit is filed for realization of money based on the mortgage. The suit was posted for appearance of the defendant bn 20.11.2020. As the defendant did not appear, he was set ex parte and later the evidence of the plaintiff was recorded on 30.11.2020 and judgment was pronounced on 01.12.2020 allowing the suit passing the preliminary decree.

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3. The petitioner/defendant stated that he could not attend before the Court on 20.11.2020 due to ill-health and that he has good grounds to contest the suit and that the delay occurred due to illhealth and not intentional or deliberate.

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CRP No.652 of 2022

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The respondent/plaintiff filed a counter opposing the petition and denying the contents of the petition and further stating that th^re IS rio proof filed to substantiate the ground taken for the absence and to satisfy the essential conditions to seek the relief under section 5 of the Limitation Act. The respondent further stated that l.A.No.405 of 2021 was filed seeking final decree in which the petitioner received the notice and appeared through his copnsel and did not choose to file the counter till date and at that juncture, this petition was filed to drag on the matter without any merit. The respondent prayed to dismiss the petition.

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After hearing both parties, the trial Court dismissed the petition observing that the petitioner has not filed any proof to show that he suffered ill-health so as to explain the delay.

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Apart from dismissing the petition filed under Section 5 of the Limitation Act, the application filed under Order 9 Rule 13 CPC was also rejected consequently.

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1. Having been aggrieved by the order, the petitioner/defendant preferred the. revision petition.

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The learned counsel for the petitioner submitted that the trial Court erroneously dismissed the petition on-mechanical approach and that a fair opportunity ought to have been given to the petitioner. He

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CRP No.652 of 2022

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further submitted that medical certificate in-proof of ill-health was filed before this Court and the date of appearance to be made is during the Covid-19 pandamic condition and therefore a lenient view ought to have been taken by the trial Court.

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The notice sent to the respondent was returned unserved as refused.

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Since the period of delay is not too long and due to prevalence of covid-19, at the relevant time, the trial Court ought to have taken a lenient approach while examining the sufficient cause for the delay stated by the petitioner. To justify the ground taken, of course, the medical certificate was filed before this Court only and thus there was ho occasion for the trial Court to examine the same. Anyhow, it shows that the ground taken by the petitioner is not frivolous and if any inconvenience is caused to the respondent, some terms ought to have been imposed by the trial Court by allowing the petition. Furthermore, to control the delay in the proceedings, a conditional order could have been passed by the trial Court to file the written statement within the stipulated period. Since the trial Court has not considered the petition in the light of well settled principles laid by the decisions of various High Courts and the Supreme Court that an effort must be made by the Court to decide the matters on merits rather than scuttling the dispute at the threshold, particularly when the

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CRP No.652 of 2022

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<•

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delay in the case pn hand is not too long and the conditions by then were also not congenial. The trial Court ought to have allowed the petition by stipulating conditions as to some monetajy terms to protect the interest of both parties and tp i ' i to avoid further delay in the prpceedings.

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In the result, the civil revision petition is allowed-by setting aside the order dated 23.02.2022 in I.A.Np.SSO of 2021 in O.S.No.230 of 2020 on the file of the Court of the Principal Junior Civil Judge, Dhone, and the said lA is allowed on the condition that the petitioner .ahall deposit X,4« of the suit amount and file the written statement before the trial Court, both on or before 29.09.2023 before the trial Court, failing to fulfill any of these conditions, the petition stands dismissed without any further order of this'Court. There shall be no order as tp costs;

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Miscellaneous Petitions, if any pending, in this Civil Revision

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petition, shall stand closed.

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SD/-K TATA RAO DEPUTY REGISTRAR

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//TRUE COPY// ^EcflON^iFFicER

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i a cssa.'s.'sa Civil Judge at Dhone.sss.. ,op„c,

sree

HIGH COURT

DATED:04/09/2023

ORDER

CRP.No.652 of 2022

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1 SEP 2023

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ALLOWING THE CIVIL REVISION PETITION

B.Haritha v. N.E.Nagendra

Case brief

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B.Haritha v. N.E.Nagendra

Case brief

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