Dismissed

Anganti Rajamallu v. Kasam Madhusudhan Reddy and 9 others

Telangana HC14 Oct 2022CRP/1605/2022

Case brief

AI extract

What is this about?

This court dismissed a civil revision petition challenging the dismissal of an interlocutory application seeking condonation of a 1085-day delay for restoring an abated appeal suit, holding the explanation fanciful.

What did the court decide?

Civil Revision Petition dismissed. Interlocutory applications in the revision petition closed. No order as to costs.

Anganti Rajamallu Vs Kasam Madhusudhan… — Civil Procedure and Limitation | Telangana HC (2022)

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IN THE HIGH COURT^FOR THE^{STATE OF TELANGANA} AT HYDERABAD

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FRIDAY ,THE FOURTEENTH^{DAY OF OCTOBER} TWO THOUSAND AND TWENTY^TWO

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PRESENT

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THE HONOURABLE SRI JUSTICE A.VENKATESHWARA^REDDY

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CIVIL REVISION PETITIO N^{NO:'1605 OF 2022}

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Petition under Section 115^{of the civil Procedure code, aggrieved by the order} dated. 29-4-2022 in^{l.A.NO.77 0F 2o2Oin A.S.NO. 21 0F 2016 0n the file of the ll} Addl. District^judge,( FTC)^{Adilabadat lvlancherial andconsequently allow l.A No. 77} of 2020 tn A.S.No.^{21 of 2016.}

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Between:

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Anoanti Raiamallu. S/o.Raiaram, Aqed^{about69 years, Occ Singareni} Em"ployee.^{'FJo.JendaVBenkatapur.-RIMI} ,Luxettipet,^Mancherial -District, Fr"i",itiy at Kasireddypalli,^{GP Boodakurd, F/M. Bellampally,Mancherial District.}

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PetitioneriPetitioner/Appel^lant

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AND

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Kasam Madhusudhan Reddy,^{(Died for LRs Respondents5 and 6)'}

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Kasam Radhamma,^{W/o. Late Venkat Reddy (Died for LR Respondent-1)}

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Kasam Sunitha, W/o.tr/adhusudhan^{Reddy (Died for LR Respondent-1)}

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Anumandla Mutha^{Reddy, (Died for LRs Respts7 to 10}

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Res pondents/Respondents/Respondents.

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Kasam Harish Reddy, S/o.Madhusudhan^{Reddy, Age. M?jor' R/o Flat No G-6,} Ridgefleld and Giridhari^{lsthapet,AbhyudayaNagar, Serilingampally,} Darigadh Khaleej Khan,^{Hyderabad District Ranga Reddy.}

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Kasam Harika,^{D/o.l,4adhusudhan Reddy'W/o.Kiran Kumar Reddy, Aged} about 26, R/o.Flat No.G-6,^{Ridgefield andGiridhari lsthapet, Abhyudaya.} . Nagar, Serilingampally,^{Dangadh Khaleej Khan,Hyderabad,Ranga Reddy} Disirict.

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Anumandhla @ Hanumandla^{Neeraja, W/o.LateMuthaReddy, age Major,} Occ. Housewife

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B. Anumandla @^{Hanumandla Sridhar,S/o.Late Mutha Reddy,age'Major,}

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Anumandla @ Hanumandla^{Srilekha,D/o.Late Mutha Reddy,age'Major,}

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l0.Anumandla @^{HanumandlaSrilatha, D/o.Late Mutha Reddy,.Ag-e' Major,..} - ii"ipo"o"nE tto.z to'1 0 are R/o'H.No.1 -23, Mamidipalli, Rl/M Dandepally' Mancherial District).

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Res ponde nts/Res ponde nts/Proposed Respondents

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( Respondents NO. 1 to 4 and 7 to^'10 are not necessary^parlies)

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Counsel for Petitioners: Sri GANTA^RAIVA KRISHNA,^Advo:ate

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Counsel for Respondents No.5^{&6 :} Sri K.^{I!'IALLlKARJUNA MURTHY,Advocate} Counsel for Respondents:

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The Court made the following: ORDER

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THE HON,BLE SRI JUSTICE A, VENKATESHWARA REDDY C.R.P.No.l ti OS of 2022

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ORDER:

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This Civil Revisior.r Petition is liled under Section 1 I 5 of Civil Procedure Code, 1908 (for short 'C.P.C.) by the petitioner/ appellarrt/ plaintiff assailing the order dated 29.O4.2022 in IA No.77 ol 2020 in AS No.21 ol 2016 on the file of the learned ll Additior-ral District Judge at Manchenal.

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This Interlocutory Application, vide IA No.77 of 2O2O, is filed by the appellant under Section 5 of the Limitation Act to condone the delay ol 1085 days in filing an application for restoration of the Appeai Suit in A.S.No.21 of 2016. The learned ll Additional District Judge, Mancherial has dismissed the said application holding that the appeal suit was dismissed on O7.O7 .2017 as abated and the limitation for bringing the legal representatives^on to record under Rule-4 of Order-XXII C.P.C. is 6O days arld limitation for f iling an application to set aside^the abatement under Order-X'XII Rule 9 C.P.C.^is 30^{days and.r} I that the petitioner failed to explain the delay beyond^this

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Page 2 of 12

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period and tl-re delay of 1085 days is not a small^{trme to} ignore, the atritude and^concluct ol the^{petitionerappears} to be callous and lethargic^ancl the^{petitior, is dei'oidof} merlts,

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Assaiiing the said orders dated^{29.01.2022 tn1A} No.77 of 2.020 in AS No.21 ol 2016,^{the present civil} revision petition is liled^{on the follou'inggror-trds:}

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i) that the trial Court^{failed to appreciatethat} the petitioner could not^{secureth,: details of} Iegal representatives of the^deceascd/ respondents 1 to 4 as^{the counsel for the} petitioner failed to inform^{zibout lhe} dismissal of the appeal^{suit immeciratel.v;}

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ii) that the suit is tiled^{by the plaintiff for} specific performance of^{contract, whereby} huge amount of money^{was paLid by the} petitioner to the deceased-respon^CentNos.1 to 4; and

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iii) The trial Court has^{failed toc'rnsider all} these aspects and dismissed^{the application} on technicalities.

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Page 3 of 12

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,\ \ ttl I lt| \e l6l; 11 11122

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4 . The respondents 5 and 6 filed detailed counter denying the petition averments alleging that the petition was dismissed by giving cogent reasons. The allegation that the petitioner was not aware of the legal representatives of respondents 1 to 4, as their counsel or the family members did not inibrm the same is not correct, the petitioner as a prudent litigant failecl to enquire arrd also failed to implead the lega1 representatives of the deceased-respondents. There is inordinate clelay of 1OB5 days and the appeliate Court has rightly dismissed the said appiication. There are no merits in the application and prayed for dismissal of the revision petition.

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Heard the learned colrnsel on both stdes. The submissions made on either side have received due consideration of this Court. Perused the material available on record.

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The learned counsel for the petitioner would submit that the petitioner/plaintiff has filed the original suit in OS No.152 of 2OO9 on the file of rhe Additional Senior Civil Judge at Luxettipet for specilic performance of agreement .,-

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PaSe 4 of 12 \ \ ti.l ( lil,,, I1r: {,i l(rjl

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of sale. Unfortunately the trial Court has disrnissed the original suit. Feeling aggrieved by the jr-rdgnrent ancl decree dated 17 .O8.2O16, the plaintiff has preferrcd this appeal, u.hi<:h rvas dismissed lor delauit on 07 .O7 .2O 17 and the rights of the parties are ir-rvolved in l esl)ect ol the immovable properties and prayed for settirrg asiclc the order impugned.

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The learned counsel for the petitiorrer placed reliance of the orclers of this Court in C.R.P.No.979 of 2O2l dated 1 2 .A+ .2O2 ) betu'een Sirtkonda Madhava Rao u. /V. Hemalatha and others:

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B. Per contra, the learned counsel appearing for the respondents 5 & 6 would strenuously contcr-rd tl'rat the dela-v is not properly explained, the petitioncr has not filed any application to set aside the abatement caused in view of death of deceased-defendants, there is inordinate de1ay, filing of such application under Section 5 of the Limitation Act rvithout filing an application to set aside the abatement

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1 Manu/Tf-l 1421 /2022

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Page 5 of 12

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AVT{J CItl) No. 160-i ot20ll

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is unknown to law and accordingly prayed for dismissal ol the present revision petition.

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The admitted or undisputed facts of the case are that the revision petitioner/ appellant/ plaintiff has liled the original suit in OS No. 152 of 2OO9 on the file of the Additional Senior Civil Judge ar Luxetripet for specific performance ol suit agreement of sale dated 06.10.2003. The triai Court upon considering the u,,ritten statement filed by the defendants 1 & 2 framed issues, thereafter examined PWs. 1 to 4 on behalf of the plaintiff and DWs.1 & 2 on beha-lf of defendants and upon considering the said oral evidence along with Exs.A. 1 to A.B dismissed the suit of the plaintiff. Feeling aggrieved by the said judgment and decree dated lZ.0g.2016 in OS No.152 of 2009, the plaintiff has filed the Appeal Suit in AS No.21 of 2Oi.6 before the iearned II Additional District Judge at Mancherial. The said appeal suit was also dismissed on 07.O7.2017 as abated.

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It is submitted by the learned counsel for the petitioner that as on the date of judgment in OS No. 152 of

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Pa^{ge 6} of 12

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\ ii ( l,l, \r, r/irr. L,t tlll:

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2OO!) itself. thc defer.rciant^{No'4 died on 12 Oll 20 1zl' br-rt it} \'as not irrl'rritred to the^{Court.Accordil-rgly, judgment ri'as} grasscd on l;.08.2016.^{Thereafter,the aplreal suil uas} filed. Agarrr rluring^{pendet-rcy of this appr:al' tl-re first} rcspolrclerrt^cltecl on^{15.1 1.2016 ancl the third respondcnt} cliccl on 15 12.2016.^{After dismissal of the appeal suit on} 07 .O7 .2017 . the^{second respondent also die'lThus' the} origrrral clclt'rrclants I^{to 4 in OS No 752 ('f 2O09 died'} Arrorg tlrt rrr.^{defendant No.4 died on 12 03 20 14 during} ltctt^{clt:t-lcr rrl Lhe original suit before the trialCourt'} hori ever. rlrc^{trial Court has dismissed the oliginal sltit on} 17.08.20 i^(, ititer^{the fuli length trial, r'r'hereasthe appeal} suit again:;l^{t he defendants was dismissedas abate d on} ()7.O7.2O1 l' sitrce the plaintiff failed to take steps^{to bring} thc iegal^{rt'1>re sentativesof the deceased defendants1 to 3} on to rccor(l^.

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1 1 . Perused^{the avermentsof supportingalTidavitfiled in} lA No.77^{ol 2O2Owherein it is mentionedin para-2 thatthe} learned^{counsel did not reveal the death of respondents1'} 3 &^,1 either^{to the Courtor to the petitioner,accordingly}

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PaBe 7 of 12

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A VR] CRP No. I 605 ol1ll2

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they could not take steps. Consequently, the appeal suit was dismissed as abated against the respondents 1, 3 & 4, whereas against respondent No.2, it is dismissed for default for non-payment of process. T.he present application is filed to condone the delay of 1085 days from 07.O7.2017 to 26.06.2020 in fiting restoration application to restore the appeal.

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On a careful scanning of the entire aflidavit filed in support of the application in IA No.77 of 2O2O except stating that the respondent's counser failed to inform either to the Court or to the petitioner about the death of respondents 1, 3 & 4 who died during pendency of the appeal suit on 15.11.2Ot6, 15.12.2O16 and on t2.O3.2O14 respectively, no other ground is made out to condone such inordinate delay of l08S days.

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It may be stated that the petitioner has also filed IA No.79 of 2020 under Order-IX Rule_4 of CpC to set aside the dismissai order dated OZ .OZ .2OlZ and the same was dismissed on 29.O4.2022 with an observation that in view of the dismissal of IA No.77 of 2O2O, the petirion is

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Page 8 of 12

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\''R.l CRI']^{\o(r05 ol l0ll}

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clismisseci as infructuous. Aggrieved by the^{same, the} petjtioner- has lilcd CMA No.331 of 2022 o11 the^{lile of this} Court. Srmil:rrlv. the petitioner has filed IA^{No.78 of 2O2O} uncier C)rder-XXII Rule 9 read with Section^{151 of C.P.C. to} set asicle the abatement^caused in view^{ol the deathof} respondents 1, 3 & 4. That application in^{I.{ No.78 of 2020} was also dismissed by the trial Court on 29.04.2022'with^a cryptic order stating that in^view of^{dismissal of IA No.77of} 2020. tl-rc petition has become infructuous.

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Thus. assailing the orders in^{IA No.79 of 2O2O and IA} No.78 ol 2020, the revision petitioner^{herein has filedCMA} Nos.33 1 and 341 of 2022 respectively^{before this Court. So} also, the rcvlsion^pctitioner has^{filed IA No.B0 of 2O2O} under Order XXII Rule 4 of C.P.C.^{tobring the legal} representaiives ol the deceased/respondents^{.l to 4 on to} record. This application was also^{dismissed by the trial} Court on 29.O4.2022 holding that^{since IA No.77 of 2020 is} dismissed, the petition has become^{infructuous. Thus,IA} Nos.78, 79 and BO ol 2022 filed^{by the petitioner before the} trral Court rl,ere dismissed as^{stated above only with an}

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Page 9 of 12

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observation that in view of dismissal of iA No.77 of 2020, those applications have become infructuous and dismissed.

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The learned counsel for the petitioner relied on thc principles laid by this Court in Sirikond.a Madhaua Rao,s case (1sI cited supra) and submitted that procedure is only meant to facilitate the administration of justice and not to defeat the same and unless such procedural violation causes a serious prejudice to the adversary party, the courts must lean towards doing substantial justice.

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I 6 . Perused the principles iaid in the above decision, '"vherein^the CRp was filed assailing the orders of de_ exhibiting particular document. The lacts of the presenr case are quite distinct. The petitioher is not entitled to take shelter under the principles laid in the above decision. In the case on hand, it is for the petitioner to explain the inordinate delay of 1085 days in filing an application to set aside the abatement caused to the satisfaction of the Court.

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PaBe^{10 of} 12

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AVR] ( Rl' No. l(,lli ol 1022

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In this context. i rnav refer to the principles laidⁱⁿ Esha Bhattacharjee u Managing Committee of Raghunathpur Nafar Academg and. others2 ri'herein the Honble Supreme Court of lndia has sun-rmarized the principles t hilc clenlrr-rg ii ith ar-r application under Section 5 of the Lin-ritatior-r Act ar-rd held that there should^be a Iiberal, praqrnatic. j usticc oriented, non pedantic approach n,hile deahng u rtir :ur .rpplication for condon,ation of deiay and at the sarnc time, tl're concept of liberal approach^has to encapsrrlatc the conception of reasonableness and it cannot be allou,ecl a totallv ur-rfettered free^p1ay. If the explanatior, ofl'crcd is concocted or the grounds urged in the explanirtiorr arc lanciful, thc courts should be vigilant not to exp()se the olhcr side unnecessarily to face such litigation

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Be it statcd that the^{petitioner/ appeiian,,/ plaintiff} has filed this applrcatior-r to cor-rdone the^delay of¹⁰⁸⁵ da1's and the onlv explirnation offered by the^petitioner is that the learned cor-rnsr:l k;r the defendants failed to inform^the

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Page 11 of 12

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AVITJ Ci{P No. l60S o1'2011

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Court about the death ol respondents/ defendants

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Con sequently, there was delay. It is pertinent to mention that the defer-rdant No.4 died even during pendency of the original suit No. 152 of 2009 on 12.O3.2014, but the plaintiff failcd to rnform the same to the trial Court and thc judgment ar-rd decree r'vas passed against the dead person That apart, it is the responsibility of the plaintiff/ appellant to pursue the iitrgation as a prudent litigant and in case of death of any of the parties, to bring the legal repre se ntati.e s on to record, he calnot throw the entire burder-r either on the respondents/ defendants or on thc learned counscl for the defendants, more so in a suit for specific performance having parted alnount in favour of the defendants. no prudent man^-wi1l remain silent for such^a long period without pursuing the litigation arrd^no reasonable attempt was made by the petitioner to^explain such inordinate de1ay.

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Thus, when the facts of the^{present case are tested} on the principles laid by the Apex Court^{in the above} decision, the answer is in the negative.^{The petitioneris}

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ttot enlitl.:d for condoning thc. dela.r ol 1OB5 cla.r,s in fi[ng thc applri::rtron to r-estore tlte appeal. The lirst appellate Court hrLs passed a reasc,ned orcler ilnd prevented unv,'arran tcd exposlrrc of tlrt: legal representatives of the deceased- responclcnts to fai:e surch litig,ltion. As the explanation offered br, ,;he pcririoner to con,lone tire delay ol 1rJB5 cla's appears to be fancilul and on concocted grounds, l do not fi'rd anr.' j i,i risdictio.ral error committed b1, the appellatc Court in clisnLissrr-rg tl-re saicl application in IA No.77 o1- 2O2O.

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20 . ln the result, tl,re Ctvil l?er.ision petition is dismissed confirming the order impugn, ,d clated 29 .C4.2022 tn IA No.77 of llO20 in AS No.2l ol 2016 on tl,re file of the iearncd II Aclditional Distrjc: Judge at Mancherial. Howe'er, iit the circumstances of thc case, t here shall be no orcler as to costs.

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As a sequel, interlocutory applications, if aly pending in this revision petition, shall stand closed.

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To,

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Sd/. K. SHYLESHI DEPUTYREGISTRAR //TRUE COPY// ( -112 SECTION OFFICER

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The ll Additional District Judge [F.T.C], Aditabad at Mancheriat 2. One CC to SRt. GANTA RAIVIAKRISHNA, Advocate tOpUCl 3. One CC to SRt. K. MALLTKARJUNA MURTHY, Advocate tOpUCl 4. Two CD Copies

d\rY PR

HIGH COURT

AVRJ

DATED:1411012022

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ORDER