Dismissed

Mohd.Rafiuddin v. Sri. Amruthlal

Telangana HC30 Aug 2011CRP/3424/2011

Case brief

AI extract

What is this about?

In this civil revision, the High Court dismissed the petition challenging the trial Court's refusal to condone a delay of over 876 days in filing an application to set aside a suit dismissal for default. The trial Court found the petitioner's health excuse false, noting he traveled extensively and prosecuted other cases during the delayed period.

What did the court decide?

Civil revision petition dismissed; suit remains dismissed under Section 5 of the Limitation Act.

Mohd.Rafiuddin Vs Sri. Amruthlal — Specific Performance | Telangana HC (2011)

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*HON’BLE SRI JUSTICE R.KANTHA RAO

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+ C.R.P.NO.3424 OF 2011

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% Date: 12.12.2011

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BETWEEN:

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# Mohd. Rafiuddin $ Sri Amruthlal

And

…Petitioner

Respondent

! Counsel for Petitioners: Smt K.Sridevi

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^ Counsel for respondents: Sri V.Manohar Rao

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< GIST:

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>HEAD NOTE:

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? Cases referred: [1] 2011(5)ALD 721 2 2011(6)ALT 225 3 (1998)7 SCC 123

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HON’BLE MR JUSTICE R. KANTHA RAO

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C.R.P.NO.3424 OF 2011

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DATED: 12.12.2011

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BETWEEN:

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Mohd. Rafiuddin .. Petitioner And Sri Amruthlal

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.. Respondent

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HON’BLE MR JUSTICE R. KANTHA RAO

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C.R.P.NO.3424 OF 2011

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ORDER:

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This civil revision petition is filed against the order dated 15.04.2011 passed by the VIII Additional District Judge, Nizamabad in I.A.No.746 of 2009 in O.S.No.39 of 2002.

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2. I have heard Smt K.Sridevi, learned counsel appearing for the revision petitioner and Sri V.Manohar Rao, learned counsel appearing for the respondent.

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3. The revision petitioner filed the suit before the learned trial Court for specific performance of the agreement to sell dated 27.07.1995 relating to immoveable property. As he failed to adduce evidence when the matter had come up for trial, the trial Court dismissed the suit for default on 07.11.2006 and the petitioner filed an application before the trial Court under Section 5 of the Limitation Act to condone the delay of 876 days in filing the petition to set aside the dismissal order dated 07.11.2006, whereby the suit was dismissed for default.

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4. The petition was opposed by the defendant contending inter alia that the petitioner was not diligent in prosecuting the suit, there

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was willful negligence on his part, he was attending several places during the relevant period and he prosecuted some cases including habeas corpus petition filed seeking release of his brother.

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5. The learned trial Court conducted detailed enquiry during the course of which the petitioner examined two doctors, who allegedly treated him and issued certificates as PWs.1 and 2, examined himself as PW.3 and marked seven documents. The respondent did not adduce any oral evidence, but he marked 13 documents.

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6. The learned trial Court upon hearing either side and considering the material placed before it dismissed the I.A.No.746 of 2009 filed under Section 5 of the Limitation Act by the revision petitioner. Aggrieved by the said order, this present civil revision petition is filed.

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7. The point for consideration in the present civil revision petition is:

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Whether there are any reasonable grounds to interfere with the order passed by the trial Court in dismissing the I.A.No.746 of 2009?

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8. The learned counsel appearing for the revision petitioner would submit that merely because the delay is inordinate, it is no ground to reject the application filed under Section 5 of the Limitation Act seeking condonation of delay and if the applicant is able to properly explain the delay, even if it is inordinate, can be condoned.

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9. In support of his contention, the learned counsel appearing for the revision petitioner relied upon a decision of the learned single Judge of this Court in MADDINENI VENKATESWARLU AND

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ANOTHER v MADDINENI RAJAMMA @ RAJESWARI AND

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OTHER S^[1] wherein it is held that when the first petitioner, who is said to be a man of unsound mind and the second petitioner is said to be absent during the relevant period and thereby no mala fides can be attributed to the petitioners in prosecuting the case. When the rights of parties in an immovable property are involved, the delay in filing the petition under Order 9 Rule 13 CPC to set aside the ex parte decree can be condoned. The learned counsel also relied upon a judgment of another learned Single Judge in V.LINGA REDDY AND

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OTHER v V.RAM REDDY AND OTHER S^[2] wherein the delay of 14 years in making the application to set aside the

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ex parte decree was condoned. In the said case the learned Single Judge held that mere inordinate delay is no ground to refuse the application filed under Section 5 of the Limitation Act to condone the delay, when sufficient cause is made out for the delay and that the expression ‘sufficient cause’ has to be considered for the purpose of advancing substantial justice.

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10. There is no dispute about the propositions laid down in the above said two judgments. But the facts of the present case are altogether different from that of the facts mentioned in the above referred judgments. The learned counsel further relied upon a decision reported in N.BALAKRISHNAN v M.KRISHNA MURTH Y^[3] wherein the Supreme Court laid down certain guidelines for exercising discretion in the matter of condonation of delay in the applications filed under Section 5 of the Limitation Act. The Supreme Court held as follows:

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“Words ‘sufficient cause’ should be construed liberally and that acceptability of explanation for the delay is the sole

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criterion, length of delay not relevant. In the absence of anything showing mala fides or deliberate delay as a dilatory tactic, court should normally condone the delay. However, while doing so court should also keep in mind the consequent litigation expenses to be incurred by the opposite party and should compensate him accordingly. Where a court condones delay in positive exercise of discretion, superior court and more particularly the revisional court should not normally disturb the same. But where request for condonation of delay is refused, it should be open to the superior court to come to its own finding on the basis of explanation for the delay given by the party.

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In this case, explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising revisional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs. Fifty thousand from the delinquent-advocate through the Consumer Disputes Redressal Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial Court but on a condition that the appellant shall pay a sum of rupees ten thousand to the respondent (or deposit it in this Court) within one month from this date.”

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11. In all the above cases, it was found that the explanation offered by the applicant as to the cause of delay was satisfactory and there are bona fides on the part of the petitioners. But, in the present case after carefully considering the evidence adduced by the parties in support of their respective contentions, the application filed for condonation of delay in I.A.No.746 of 2009, the learned trial Court in its order held as follows:

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“It is to be noted that, if really, the petitioner suffered ill-health for the above period, how it is possible for him to go to HAJ on pilgrimage, and visits Sabarmathi jail in Ahmadabad to see his brother Naseeruddin on 13.11.2006, 20.04.2007, 04.06.2007, 27.07.2007, 05.11.2007, 14.07.2008, 17.11.2008 and 09.03.2009; and during the years 2007 and 2008, he went to Belgaon and in the year 2009 he went to Indore to meet his brother’s sons and how he went to excursion to Dargling, and Mount abu during the period of illness and

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Delhi to meet Advocate Kamini Jaiswal to discuss about his brother’s case before the Hon’ble Supreme Court and how he participated in the meeting held from 22.08.2008 to 24.08.2008 to discuss about the atrocities on minorities and addressed a gathering. The admissions in cross examination of PW.3 coupled with Exs.B.1 to B.13 would go to show that he was hale and healthy and that was why he visited Ahmedabad, Delhi and other places and also went to HAJ on pilgrimage and participated and addressed a gathering at Hyderabad to discuss about the atrocities on minorities etc, and he is not diligent in pursuing the case and he did not evince any interest to adduce evidence on his behalf and so he deliberately did not file this petition immediately after dismissal of the suit for default and leisurely he came along with this petition with a bald plea that he suffered ill-health during the above period, so he is not fair enough to consider this petition.”

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12. Thus, it is a clear case where the revision petitioner was addressing public gatherings during the relevant period, visiting other places in connection with prosecuting other cases before the Courts including habeas corpus petition in the Supreme Court. From the evidence, the learned trial Court found that the inaction or negligence on the part of the revision petitioner in prosecuting the suit is wanton and deliberate and the cause furnished by him in the petition was rightly found to be false by the trial Court. Under these circumstances, it cannot be said that the learned trial Court exercised its jurisdiction erroneously and improperly. The order passed by the learned trial Court does not suffer from any irregularity or illegality and hence, needs no interference in this revision petition.

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13. The civil revision petition is therefore, dismissed. There shall be no order as to costs.

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Date: 12.12.2011 R. KANTHA RAO, J Note: L.R copy to be marked b/o kvrm

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HON’BLE MR JUSTICE R. KANTHA RAO

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C.R.P.NO.3424 OF 2011

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DATE: 12.12.2011

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