Allowed

Murki Laxmi v. Nagula Ramulu

Telangana HC13 Aug 2010CRP/1749/2010

Case brief

AI extract

What is this about?

The High Court allowed a civil revision petition, condoning a 130-day delay for a respondent-defendant in setting aside an ex parte decree. The court set aside the trial court's order, permitting a fresh application on payment of costs, citing the rural background and subsequent medical evidence regarding ill health despite initial lack of court evidence.

What did the court decide?

Civil Revision Petition allowed; impugned order set aside; IA No.804 of 2009 allowed only for the 1st petitioner on payment of Rs.500 as costs.

Murki Laxmi Vs Nagula Ramulu — Property and Title | Telangana HC (2010)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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FRIDAY, THE THIRTEENTH DAY OF AUGUST TWO THOUSAND AND TEN

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HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.1749 of 2010

Between:

Murki Laxmi

..Petitioner

AND

Nagula Ramulu and others

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.. Respondents

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ORDER:

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The Civil Revision Petition is directed against the docket order dated 05-02-2010 in I.A.No.804 of 2009 in O.S.No.41 of 2008 on the file of the Principal Junior Civil Judge, Siddipet, dated 0502-2010.

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It is to be noted in the first instance that though the order dismissing the petition to condone the delay in filing the petition to set aside the ex parte decree was against the defendants 1,2,4,6, and 7 in the suit, it is only the 1^st defendant that has approached this Court with this revision and hence, insofar as the defendants2,4,6, and 7 are concerned, the impugned order is not under challenge and has to be considered having become final. The consideration herein is confined to the justifiability of the request

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of the 1^st defendant alone in this regard.

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The suit for permanent injunction ended in an ex parte judgment and decree on 30-09-2008 granting a perpetual injunction in respect of the suit schedule agricultural land of Acs.2.00 guntas of land as specified in the plaint schedule.

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The 1^st defendant gave an affidavit in support of the petition to condone the delay claiming that due to lack of knowledge of the court proceedings, they could not appear before the Court and due to unavoidable circumstances, they could neither enter appearance nor engage an advocate and even after knowing about the ex parte decree, they could not file a petition to set aside such a decree within the stipulated time again due to ignorance. As they would suffer heavy and irreparable loss, which cannot be compensated, if the decree were to continue and as no prejudice will be caused to the other side, if the delay is condoned, the 1^st defendant sought for condonation of delay of 130 days in filing the petition to set aside the ex parte decree.

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The request was opposed by the plaintiff contending that the alleged ignorance of the defendants does not constitute any sufficient cause and it is obvious that they had not intentionally appeared before the Court.

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The trial Court passed the impugned order noting that under Section 5 of the Limitation Act, the petitioner had to explain sufficient cause for each day of delay and neither lack of knowledge of the court proceedings nor unavoidable circumstances can be considered to be sufficient cause for the purpose of Section 5 of the Limitation Act. The facts and circumstances therefore were considered not to explain as to why the defendants could not appear before the Court and hence, the

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request was negatived.

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The 1^st defendant challenges the said order contending that the causes alleged by her are sufficient and as she was suffering from viral hepatitis, she could not attend the Court after receiving the summons, which is a sufficient cause. Claiming to have purchased the suit property under a registered sale deed dated 2310-2002 to an extent of 9 ½ guntas, the 1^st defendant desired the impugned order to be reversed.

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The 1^st defendant filed a further affidavit before this Court stating that she was unable to move out of bed due to jaundice since first week of September, 2008 till the last week of January, 2009, during which period Dr. N. Ganesh of Siddipet treated her from

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03-09-2008 to 30-11-2008 and the Medical Officer, Primary Health Centre, Maidaram treated her on 05-12-2008 advising to have bed rest for two months. She claimed to have got the petition filed after recovery. The outpatient ticket issued by the medical officer, Primary Health Centre, Maidaram, on 26-07-2010 about the treatment on

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05-12-2008 and the certificate issued by Dr. N. Ganesh, Siddi Vinayaka Hospital, Siddipet, about the treatment from 03-09-2008 to 30-11-2008 for viral hepatitis for the 1^st defendant were filed. Both the certificates state that she was advised to take bed rest for two months or during treatment respectively.

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The 1^st respondent-plaintiff in the counter affidavit in C.M.R.M.P.No.2347 of 2010 referred to the 1^st defendant claiming to be suffering from viral hepatitis for the first time before this Court and contended that the same to be an afterthought to get over the absence of explanation for the delay before the trial

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Court. The plaintiff, therefore, contended that the intentional absence of the 1^st defendant before the trial Court was rightly refused to be condoned by the trial Court.

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Sri M. Rajamalla Reddy, learned counsel for the revision petitioner, requested for taking a liberal view of the explanation offered by the revision petitioner, who is a rustic lady with an ignorant rural background and Sri V. Viswanatham, learned counsel, representing the plaintiff opposed the same placing reliance on the decision in K. Srinivas v. K. Govin d^[1] .

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The point for consideration is whether the delay in filing the petition to set aside the ex parte decree needs to be condoned in respect of the 1^st defendant?

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The facts in K. Srinivas v. K. Govind (stated supra) presented a situation where the person seeking condonation of delay had knowledge of the suit and the further proceedings therein, but was claiming an impression, that the plaintiff therein has withdrawn the suit, to have led to the inaction on his part. It was on the facts of that case that this Court concluded that the person seeking condonation of delay in that case was unable to convince the Court in a connected C.R.P. about the alleged impression about the possible withdrawal of the suit and the order in that C.R.P. had become final, due to which it was considered that identical questions of fact could not be decided differently. Even otherwise, it was considered that there was no oral or documentary evidence about the nature of the health of such person to consider any condonation of delay.

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In the present case also, it is true that there was not even a reference to ill health of the 1^st defendant before the trail Court leave alone any evidence or proof of the same and it is only before

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this Court that such an allegation was made in the grounds of revision, which is sought to be reinforced by filing an affidavit and two certificates during hearing. But, this is not a case where the 1^st defendant had kept quiet because of any impressions about the proceedings of the suit pursued against her for any reason like an understanding with the plaintiff. The grounds of revision show that out of Acs.2.00 guntas of land, which is the subject matter of the suit, the 1^st defendant is claiming to have purchased only 9 ½ guntas under a registered sale deed dated 23-10-2002 and the ignorance of the 1^st defendant about the Court proceedings is not opposed in the ordinary and natural course of human events concerning persons with such a background. Though ignorance of law is no excuse, the affidavit before the trial Court also shows an allegation that the 1^st defendant was attributing her absence and the delay due to unavoidable circumstances, which were of course not elaborated. The absence of specification of the circumstances, which made it unavoidable for her, may be a strong relevant circumstance, but the rural rustic semiliterate background of the lady should explain any omission in the affidavit that was drafted under competent legal advice, but not so patently explaining the reasons for absence. Any laches on the part of the counsel need not prejudice the rights and interests of the 1^st defendant irrevocably and though the alleged suffering with viral hepatitis was raised for the first time in the grounds of revision and attempted to be substantiated through the affidavit and certificates of the medical offices, in view of the need to arrive at a decision on merits in the dispute involving immovable property in order to protect the rights and interests of both parties, the rules of procedure need not be too rigidly and technically adhered to, as they are intended to be handmaids of justice and not instruments for penalizing the parties for their technical lapses. Any

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inconvenience caused to the plaintiff due to the delay can be met by imposing appropriate terms on the 1^st defendant for considering her request and though the order of the trial Court cannot be considered to be unreasonable on the material placed before it, in view of the further facts coming to light during the hearing of the revision, the delay can be considered for condonation in this Court itself instead of remitting the matter back again to the trial Court for that purpose. Therefore, the delay of 130 days has to be considered for condonation on payment of Rs.500/- (Rupees five hundred only) to the credit of the Mandal Legal Services Committee, Siddipet, within 15 days from the date of communication of this order to the trial Court.

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Therefore, the Civil Revision Petition is allowed without costs and the order dated 05-02-2010 in I.A.No.804 of 2009 in O.S.No.41 of 2008 on the file of the Court of Principal Junior Civil Judge, Siddipet, is set aside and the said I.A.No.804 of 2009 will be allowed only in respect of the 1^st petitioner/revision petitioner on payment of costs of Rs.500/- (Rupees five hundred only) to the credit of the Mandal Legal Services Committee, Siddipet, within 15 days from the date of communication of this order and in default, the said petition shall stand dismissed.

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_____________________ G. BHAVANI PRASAD, J

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Date: 13-08-2010

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Ksn

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[1] 2009 (3) Andhra Legal Decisions 720

Murki Laxmi v. Nagula Ramulu

Case brief

What is this about?

What did the court decide?

Murki Laxmi v. Nagula Ramulu

Case brief

What is this about?

What did the court decide?

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