Dismissed

Jakkampudi Subba Rao, v. Sri Dommeti Venkanna (Died)

Telangana HC19 Aug 2010CRP/5640/2007

Case brief

AI extract

What is this about?

High Court of Andhra Pradesh dismissed a civil revision petition challenging the condonation of a 488-day delay in filing an application to substitute legal representatives. The court upheld the trial court's liberal discretion to allow the petition despite lack of medical proof, citing the need to decide matters on merits.

What did the court decide?

Civil Revision Petition dismissed without costs.

Jakkampudi Subba Rao, Vs Sri Dommeti… — Civil Procedure and Limitation | Telangana HC (2010)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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THURSDAY, THE NINETEENTH DAY OF AUGUST TWO THOUSAND AND TEN

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HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.5640 of 2007

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Between:

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Jakkampudi Subba Rao

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..Petitioner

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AND

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Dommeti Venkanna and others

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.. Respondents

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ORDER:

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The Civil Revision Petition is directed against the order in I.A.No.43 of 2007 in O.S.No.43 of 2000 on the file of the Junior Civil Judge, Palakol, dated 31-08-2007.

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The petitioners 2 to 9 claiming to be the legal representatives of the deceased 1^st petitioner, filed the petition for condonation of delay of 488 days in filing the petition to bring the legal representatives of the deceased 1^st plaintiff on record in the suit. The affidavit of the 2^nd petitioner, who is the wife of the deceased 1^st plaintiff, stated about her husband filing the suit for recovery of a promissory note debt and the inability of the legal

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representatives to file a petition to be brought on record due to her ill health and staying at her parents house at Tungabhadra, Karnataka State. She claimed that her sons, petitioners 8 and 9, had informed that they were going to file such petition and obtained her thumb impression on vakalath. She stated that her advocate, when enquired a day prior to this petition, informed that the suit was dismissed on 17-12-2004 for want of steps for representing the petition to bring the legal representatives of the deceased on record. The 2^nd petitioner, therefore, sought for condonation of delay of 488 days on the ground of her being held up at Tungabhadra and her sons being under the impression that the counsel was looking after the matter.

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The defendant/ respondent contested the claim contending that the petitioners did not file any medical certificate to show the alleged ill health of the 2^nd petitioner or show any reason for the other petitioners not acting in time. As each day’s delay has to be explained for considering its condonation under Section 5 of the Limitation Act, the petition has to fail.

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The trial Court passed the impugned order noting that the 2^nd petitioner has not enclosed any medical certificate about her ill health, due to which she was held up at her parents house in Karnataka. But, still the trial Court was inclined to condone the abnormal delay of 488 days, in spite of knowledge of the petitioners about filing and pendency of the suit, in order to give an opportunity to them, subject to condition. Consequently, it directed the petition to be allowed on deposit of costs of Rs.200/to the Legal Services Authority.

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The defendant is before this Court with this revision contending that the impugned order does not stand to reason as it would occasion miscarriage of justice and cause irreparable loss

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and injury to him, if the petition were to be allowed without any valid reasons for the condonation of the abnormal delay of 488 days. In the absence of any medical certificate for the alleged ill health of the 2^nd petitioner, the impugned order is opposed to the principles laid down by the Apex Court in AIR 2000 SC 3462. Hence, the defendant desired the impugned order to be reversed.

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Heard the learned counsel for both parties.

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The point for consideration is whether the trial Court was justified in condoning the delay in filing the petition to bring the legal representatives of the deceased plaintiff on record?

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The affidavit of the 2^nd petitioner in support of the petition shows that the dismissal of the suit on 17-12-2004 after the death of the deceased plaintiff was due to the petition to bring the legal representatives of the deceased plaintiff on record which was returned being not represented after complying with the objections. While the plaintiff died on 28-08-2004 during the pendency of the suit, the dismissal of the suit was within four months after such death on the ground that the petition to bring the legal representatives on record was not represented after complying with the objections, showing that such a petition was filed obviously within the period of limitation prescribed for filing such an application. The affidavit of the 2^nd petitioner also suggests that the petitioners 8 and 9 were conscious of the pendency of the suit and the need to file the petition for bringing the legal representatives of the deceased plaintiff on record, for which purpose they obtained the thumb impression on a vakalath. Under such vakalat, they would have engaged a counsel and got the petition to bring the legal representatives on record filed into the Court, which was returned by the Court. If the objections taken by the office of the Court were not complied with and the

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petition was not represented, the petitioners cannot be attributed with any knowledge of such lapse, when they have engaged a counsel and the parties could not have been punished for the lapses of their counsel. The stay of the 2^nd petitioner at Tungabhadra, Karnataka State at her parents house after the death of her husband is not factually disputed even if her ill-health is not corroborated by any medical certificate or evidence and her claim is that on return she enquired her advocate and came to know about the dismissal of the suit. When the petitioners 3 to 7 are married daughters and petitioners 8 and 9-sons took steps through a counsel to be brought on record and were not claimed to have been informed about the dismissal of the suit, they cannot be considered to be at such default or fault, which cannot be liberally viewed. The 2^nd petitioner stated on oath that petitioners 8 and 9 were under the impression that the counsel is looking after the matter and though the delay of 488 days is substantial, it can be considered for condonation under such circumstances. In the verified counter filed by the revision petitioner, the revision petitioner did not question the allegation of the petition to bring the legal representatives on record being filed earlier and being returned and his claim that no steps were taken within the time was not corroborated by production of any proceedings of the Court to that effect. The trial Court had taken a view that an opportunity subject to condition should be given to the petitioners notwithstanding the lapses on the part of the petitioners and it requires very strong grounds to interfere with the exercise of such judicial discretion in the restricted revisional jurisdiction of this Court.

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It is well settled that the judicial discretion of the Court in arriving at the satisfaction about the absence of sufficient cause for the condonation of delay under Section 5 of the Limitation Act

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has to be exercised liberally and in K. Ayya Thayalnayagiammal v. T.V. Thoma s^[1] relied on by the revision petitioner, the statement about the alleged illness of the party was not supported by any document and on facts, the Apex Court refused to condone the delay apart from the fact that no principle has been laid down to be on general application in such cases and the facts of the present case are clearly distinguishable due to that fact that even in the absence of proof of ill-health of the 2^nd petitioner, under the circumstances referred to in detail above, the petitioners cannot be considered to be totally at fault in the occasioning of the delay. As the rules of procedure are intended to be handmaids of justice and not to punish the parties for their technical lapses, the order of the trial Court needs no interference and the parties should be given the opportunity to have the questions in controversy decided on merits in accordance with law.

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Accordingly, the Civil Revision Petition is dismissed without costs.

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_____________________ G. BHAVANI PRASAD, J

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Date: 19-08-2010

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Ksn

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[1] AIR 2000 Supreme Court 3462

Jakkampudi Subba Rao, v. Sri Dommeti Venkanna (Died)

Case brief

What is this about?

What did the court decide?

Jakkampudi Subba Rao, v. Sri Dommeti Venkanna (Died)

Case brief

What is this about?

What did the court decide?

What the court decided

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