Dismissed

Vishwa Hindu Parishad rep., by its Secretary, v. Srikakulam Education Trust

Telangana HC18 Jun 2013CRP/4034/2012

Case brief

AI extract

What is this about?

The High Court dismissed second appeals challenging the lower court's refusal to condone a 4,417-day delay in setting aside a default dismissal of a suit. The court held that the Petitioner was grossly negligent in failing to keep in touch with counsel or file timely applications.

What did the court decide?

Applications under Section 5 of Limitation Act and Order 9 Rule 13 CPC dismissed; Civil Revision Petitions dismissed.

Vishwa Hindu Parishad rep., by its Secretary, Vs… — Execution and Attachment | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO CRP Nos.4034 and 5495 of 2012 Common Order:

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As the parties in both these Civil Revision Petitions are one and the same, they were heard together and are being disposed of by this common order.

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Petitioner in both the Civil Revision Petitions is the plaintiff in O.S.No.113 of 1990 on file of the Court of the Principal Senior Civil Judge, Srikakulam. The said suit was filed for eviction of the 1^st respondent from the plaint schedule property damages for use and occupation and costs. It was dismissed for default with costs on 2.7.1996 as the counsel for the petitioner reported ‘no instructions’. The suit was restored on 3.1.1997. Petitioner did not choose to adduce any evidence thereafter. As the counsel for the petitioner reported ‘no instructions’ and no representative on behalf of the petitioner attended the court for previous two adjournments or paid Batta costs, the court below concluded that the petitioner was not interested in prosecuting the suit and dismissed the suit for default again on 26.6.1998.

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In July, 2010, I.A.No.585 of 2010 was filed by the petitioner under Section 5 of the Limitation Act, 1963 to condone the delay of 4,417 days in filing the petition to set aside the order dt.26.6.1998 dismissing the suit for nonprosecution and I.A.No.586 of 2010 was filed under Order 9 Rule 13 CPC to set it aside.

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In the affidavits filed in support of the above

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applications, petitioner stated that it is an organisation formed with laudable object of improving the social consciousness, cordiality and humanitarian relationship between one and all and the public at large; that the suit schedule property was given to it by 2^nd respondent; that 1^st respondent is only a licencee from petitioner and had only licence for one year to run a junior college in the suit schedule property; that the lease expired on 4.9.1982 by efflux of time and thereafter the possession of 1^st respondent became unauthorised rendering the 1^st respondent liable for eviction and to pay damages; that the petitioner counsel had reported ‘no instructions’ and therefore the suit was dismissed; the petitioner was always diligent; that it had no knowledge of adjournments prior to 26.6.1998; that its representative could not attend the court as he had no knowledge about the date of adjournment; and that just prior to filing of this application, the petitioner came to know that the suit was dismissed for non-prosecution and therefore pleaded that the I.As. be allowed.

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The 1^st respondent filed counters opposing both the applications and contended that in the order dt.26.6.1998, the Court below had passed strictures against the petitioner for its negligence in pursuing the litigation; that no sufficient cause was shown by petitioner for condonation of delay in filing the petition to set aside the order dt.26.6.1998 dismissing the suit for non-prosecution and also for setting aside the said order; the respondent no.1 had filed O.S.No.5

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of 2010 against the petitioner and obtained orders of temporary injunction against the petitioner and therefore the above applications should be dismissed.

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By separate orders dt.20.12.2011, the court below dismissed both the I.As. It held that the affidavit filed in support of application for condonation of delay reveals no reasons whatsoever as to why the petitioner failed to file an application within the time prescribed by law; no oral or documentary evidence has been adduced by the petitioner to show that it was not aware of the posting of the suit on the date the suit was dismissed for default; that in the absence of specific pleading by the petitioner explaining sufficient cause supported by evidence, the delay cannot be condoned; as the petitioner had filed the suit, it cannot be said that the petitioner had no knowledge of the suit proceedings; without stating in the affidavit filed in support of the application that its counsel had reported no instructions without giving any notice to it, such a plea is raised for the first time in the arguments and such a contention cannot be allowed to be raised without a pleading; that it is difficult to believe that the petitioner was not contacted about the result of the suit by its counsel and there is no reason why for a long period of 4417 days, the petitioner kept quiet without making any enquiry with its Advocate about the result of the suit; that the Advocate also resides in the same town; this conduct indicates that the petitioner had no interest to prosecute the suit; the petitioner failed to offer any explanation, much less sufficient cause, for condonation of

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delay of 4417 days.

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Aggrieved thereby, the present Civil Revision Petitions are filed by the petitioner.

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Heard Sri L. Ravichander, Senior Advocate appearing for Sri K.S.Murthy, learned counsel for the petitioner, and Sri V. Srinivas learned counsel for the respondent no.1.

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Learned Senior Counsel contended that the petitioner is a reputed organisation and due to reasons beyond its control it could not effectively prosecute the suit and instruct its counsel resulting in dismissal of the suit for nonprosecution on 26.6.1998; that the petitioner had no knowledge of dismissal of the suit; that no notice was served by the petitioner’s counsel (in the court below) on the petitioner before he reported ‘no instructions’ in the suit; the court below should have taken a lenient view in allowing the petition for condonation of delay for setting aside the order dt.26.6.1998 dismissing the suit; that on account of sudden demise of a member of the petitioner organisation who was in charge of the suit, the delay occurred; and therefore the orders passed by the court below in I.A.Nos.585 and 586 of 2010 dismissing both the I.As are to be set aside.

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On the other hand, Sri V. Srininvas, learned counsel for the respondent no.1 contended that orders passed by the court below dismissing both the I.As. do not suffer from any error warranting interference by this Court under Section 115 of CPC; no sufficient cause has been shown by the petitioner for condonation of the extra ordinarily long delay of

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4,417 days in filing the petition under section 5 of the Limitation Act, 1963 to set aside the order dt.26.6.1998 dismissing the suit for default, and therefore both the Civil Revision Petitions should be dismissed.

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I have noted the contentions of both the parties.

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In the present case, the suit was filed by the petitioner in the year 1990 against the respondent no.1 for recovery of possession, damages for use and occupation. It was dismissed for default with costs on 2.7.1996 and subsequently it was restored to file of Court below on 3.10.1997. Subsequent to the restoration of the suit also, no evidence was led on behalf of the petitioner, no representative of the petitioner attended the court and ultimately the counsel for the petitioner reported ‘no instructions’ to the court. As the court below felt that the petitioner had no interest in prosecuting the suit, it dismissed the suit for non-prosecution with costs.

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Petitioner filed I.A.No.585 of 2010 in July 2010 to condone the delay of 4417 days in filing an application to set aside the order dt.26.6.1998 dismissing the suit for default and I.A.No.586 of 2010 under Order 9 Rule 13 to set aside the said order.

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A reading of the affidavits filed in support of the said applications shows that the petitioner had not given any reason explaining the cause for delay in filing the petition to set aside the order dt.26.6.1998 or to set it aside. It merely stated that it had no knowledge and was not aware about the date of hearing of the case. It has not stated in the

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affidavit filed before the court below that the Secretary of the petitioner organisation fell sick or that there was sudden demise of certain crucial members of the organisation who were in charge of the affairs of the petitioner or that counsel for the petitioner had reported “no instructions” without issuing notice to the petitioner. Without raising these pleas in the court below, it is not open to the petitioner to raise them here. While it is true that normally applications under Section 5 of the Limitation Act, 1963 are to be considered liberally so as to advance substantial justice, such a liberal approach cannot be insisted in every case irrespective of facts therein. It was for the petitioner to keep in touch with its counsel and acquaint itself with the progress of the suit instituted by it. The facts of this case however show that the petitioner failed to do so and was grossly negligent in that behalf. It is unfortunate that the petitioner is throwing blame on the Advocate for reporting ‘no instructions’ and for not issuing notice to it before he reported ‘no instructions’ to the court below.

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In the absence of reasonable explanation from the petitioner showing sufficient cause for condonation of delay, I am of the view that orders of the court below rejecting both the I.A.Nos.585 and 586 of 2010 are not liable to be interfered with and do not suffer from any error of jurisdiction warranting interference by this Court under Section 115 of CPC.

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Accordingly, the Civil Revision Petitions are without

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any merit and are accordingly dismissed. No costs.

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JUSTICE M.S. RAMACHANDRA

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RAO

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Dt: 18/6/2013 Kk

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THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO CRP Nos.4034 and 5495 of 2012

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Dt: 18.6.2013

Vishwa Hindu Parishad rep., by its Secretary, v. Srikakulam Education Trust

Case brief

What is this about?

What did the court decide?

Vishwa Hindu Parishad rep., by its Secretary, v. Srikakulam Education Trust

Case brief

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What did the court decide?

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