Dismissed

Vijaya Bank,Malakpet Branch, v. Shaik mohinuddin

Telangana HC23 Jan 2012CRP/5739/2001

Case brief

AI extract

What is this about?

Civil revision petition filed by Vijaya Bank challenging the dismissal of its application for restoration of a suit datedismissed for default due to lack of representative. The High Court upheld the lower court's order, finding no jurisdictional error in rejecting the condonation of delay application due to procedural defects in the apppeponents affidavit and insufficient bona fides given the part

What did the court decide?

Civil Revision Petition dismissed as petitioner failed to provide sufficient cause for delay and affidavit was invalid.

Vijaya Bank,Malakpet Branch, Vs Shaik mohinuddin — Writ and Judicial Review | Telangana HC (2012)

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HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY

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CIVIL REVISION PETITION No.5739 of 2001

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Date: 23.01.2012

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Between:

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Vijaya Bank, Malakpet Branch, Hyderabad, Reptd by its Branch Manager

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..... Petitioner

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And:

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Shaik Mohinuddin and another.

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.....Respondents

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Counsel for the Petitioner: Sri E.Ajay Reddy Counsel for Respondent Nos.1 & 2: Smt A.Chaya Devi

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The Court made the following: ORDER:

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This Civil Revision Petition arises out of order, dated 17.03.2001, in I.A.No.256 of 2000 in O.S.No.345 of 1994 on the file of the learned VII Senior Civil Judge, City Civil Court, Hyderabad.

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The petitioner is a nationalised bank which instituted the above-noted suit for recovery of a sum of Rs.54,647-75 paise from the respondents. The suit was ripe for trial in the year 1996. The suit underwent as many as 16 adjournments from 06.04.1996 to 16.09.1999. When the suit was finally posted on 16.09.1999, there was no representation for the petitioner. Therefore, the suit was dismissed for default. The petitioner, thereafter, filed an

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application under Order IX Rule 9 of the Code of Civil Procedure for setting aside the dismissal order and for restoration of the suit. The petitioner also filed I.A.No.256 of 2000 for condonation of delay of 77 days in filing the application for restoration of the suit. This application, having been considered by the Court below, was dismissed by order, dated 17.03.2001. Feeling aggrieved by the said order, the present Civil Revision Petition is filed.

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I have heard Sri Prabhakar, learned counsel representing Sri E.Ajay Reddy, learned counsel for the petitioner, and Smt A.Chaya Devi, learned counsel for respondent Nos.1 and 2.

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At the outset, it needs to be noted that against respondent No.3 the Civil Revision Petition was dismissed for non-compliance with the conditional order of this Court. The Civil Revision Petition survives only against respondent Nos.1 and 2. The Court below has dismissed the petitioner’s application mainly on four grounds viz., that no officer connected with the petitioner filed an affidavit; that the junior advocate who filed the affidavit, in support of the application for condonation of delay, is not on record; that the past conduct of the petitioner shows that it has been dragging on the suit for years and that the reasons furnished in the application for condonation of delay of 77 days in filing the application for restoration of the suit are not satisfactory.

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Learned counsel for the petitioner submitted that the Court below has committed a serious error in not taking into

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consideration the affidavit of the junior advocate on the ground that he is not on record. In support of his statement he relied on the judgment of a Division Bench of this Court in G.Krimana Murthy V.Hemalatha Chit Funds Pvt.Ltd., Hanamkonda^[1] . Learned counsel further submitted that the Court below has also committed a fatal error in taking into consideration the past conduct of the party. For this purpose, he placed reliance on the judgment of this Court in Garuda Sakuntala V. A.V.M.Jagga Rao^[2] . He also placed reliance on the judgment of this Court in Rakuditi Venkata

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Ramanacharyulu V. G.Rama and anothe r^[3] in order to support his submission that the Court below ought to have been liberal in considering the application for condonation of delay.

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I have carefully considered the submissions of the learned counsel for the parties.

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As regards the first contention of the learned counsel, namely, that the competence of the advocate who is not on record to file the affidavit, the Division Bench of this Court in G.Krimana Murthy (1^st supra) referred to Rules 48, 54 and 59 of Andhra Pradesh Civil Rules of Practice and held that when an application is permitted to be signed by the party himself or by advocate, by necessary implication, the affidavit, which is filed in support of such an application, can also be signed by the party himself or by the advocate.

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This judgment, in my opinion, does not help the petitioner for the reason that, admittedly, the advocate who

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filed the affidavit is not on record. He claims that he is the junior advocate of the counsel engaged by the petitioner. The phrase ‘advocate’ in Rule 54 of the Civil Rules of Practice, should be construed as to mean the advocate appearing for the party and not any and every advocate even if such an advocate is attached to the advocate, who is engaged by the party. The affidavits filed before the Courts should have sanctity and significance and they cannot be treated as mere statements. The person who swears to the affidavit before the Court should own the responsibility for the consequences if it is eventually found that the contents thereof are either false or misleading. Therefore, the person who files an affidavit should hold a proper authority in law for filing such affidavit.

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Admittedly, the advocate who filed the affidavit, speaking to the facts which were purported to have transpired between him and the advocate of the party, is not on record at all. Therefore, it cannot be said that the said advocate has any lawful authority to file affidavit either on behalf of the party or the advocate engaged by it.

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I am, therefore, of the opinion that the Court below is justified in treating this fact as one of the grounds, if not the sole ground, to reject the application filed by the petitioner for condonation of delay.

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With regard to the second submission of the learned counsel for the petitioner that the past conduct of the party is not relevant, it is no doubt true that the past conduct of the party cannot be made the sole basis for rejecting the

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application for condonation of delay in cases, where proper reasons have been put forth by the party by establishing its bona fides for the delay in filing the application for setting aside the ex parte orders. But, at the same time, it cannot be said that the past conduct is wholly irrelevant. The past conduct is certainly relevant in order to verify the bona fides of the party in considering such an application.

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In the instant case, as noted above, the suit underwent as many as 16 adjournments for more than three years from April 1996 to September 1999. Even on 16.09.1999, neither the counsel nor the petitioner was present leading to the dismissal of the suit. The petitioner failed to explain proper reasons for its non-representation on 16.09.1999. On these facts, it cannot be said that the Court below has committed any serious error in taking into consideration the past conduct of the petitioner in judging the application filed by it for condonation of delay.

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As regards the third submission of the learned counsel for the petitioner, the settled legal position is that the Court should always maintain a balanced approach in considering the applications for condonation of delay. As held by this Court in Gangarapu Karenna V. Jami Karuvu and another^[4] , the Court should always display a somewhat liberal approach in dealing with the application under Section 5 of the Limitation Act, 1963, and it should be neither too liberal nor too technical and pedantic in dealing with such applications.

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In the present case, in the order under revision the

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Court below has considered all the reasons put forth by the advocate in the affidavit and pointed out several improbabilities in his pleas. The advocate, in his affidavit, has averred that he was instructed to represent the case on 16.09.1999; that but on the morning of 16.09.1999, his brother has seriously fallen ill forcing him to take his brother to a hospital; that when he tried to contact his senior on 16.09.1999, he could not succeed in doing so; and that as his brother's illness continued till 30.09.1999, it was only on 01.10.1999 that he came to know about the dismissal of the suit. The Court below observed that such a plea is wholly improbable and incredible as the party and the advocate on record are well aware of the posting of the case on 16.09.1999 and that, therefore, they should have verified as to what happened on 16.09.1999. The Court below has further observed that there was no justification at all for the failure of the petitioner in filing an application for restoration, at least immediately after 01.10.1999 and that, instead the application was filed on 31.12.1999. The reason offered by the advocate that the clerk to whom the case was entrusted on 15.10.1999 did not file the same was rightly rejected as unsubstantiated.

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In my opinion, the petitioner has not come out with proper reasons at all for condonation of delay of 77 days. Even though the party need not explain the day-to-day delay with precision, still, the obligation is cast on it to come out with proper and credible explanation to satisfy the Court that it was prevented by sufficient cause from not filing

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the application within time. Even assuming that the petitioner was prevented by sufficient cause till 31-12-1999, there was absolutely no reason for causing further delay in filing the application for restoration of the suit.

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Viewed from any angle, the petitioner failed to explain the delay by offering plausible and reasonable grounds. For the above-mentioned reasons, I do not find any error, jurisdictional or otherwise, in the order passed by the Court below and the Civil Revision Petition is, accordingly, dismissed.

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As a sequel to dismissal of the Civil Revision Petition, C.R.P.M.P.No.23408 of 2011 filed by the petitioner for interim relief is dismissed as infructuous.

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__________________________ C.V.NAGARJUNA REDDY, J 23^rd January 2012 DR

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[1] 2006(4) ALD 42 (DB) [2] 2000(6) ALD 634 [3] 2011(4) ALD 517 [4] 2011(4) ALD 515

Vijaya Bank,Malakpet Branch, v. Shaik mohinuddin

Case brief

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What did the court decide?

Vijaya Bank,Malakpet Branch, v. Shaik mohinuddin

Case brief

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