Allowed

Yeru Mallamma v. Deva Vanamala and 2 others

Telangana HC26 Sept 2022CRP/1718/2022

Case brief

AI extract

What is this about?

High Court allowed a civil revision petition seeking condonation of delay for an application to set aside an ex parte decree. The court set aside the lower court's order, condoned the delay, and directed the trial court to dispose of the suit within three months.

What did the court decide?

Impugned order set aside; delay condoned; application to set aside ex parte decree restored; suit to be disposed within 3 months.

Yeru Mallamma Vs Deva Vanamala and 2 others — Execution and Attachment | Telangana HC (2022)

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[³²¹⁶ ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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MONDAY, THE TWENTY SIXTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE SRI JUSTICE M.LAXMAN

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CIVIL REVISION PETITION NO:^'t718 OF 2022

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Petition under Section^'1 15 of Civil Procedure Code, againsUaggrieved by the Orderdated 3111212021 in lA No.35 oI 2020 in lA No.46/2020 in OS No.26l2016 on the file of the Principal Junior Civil Judge-cum- Principal Judicial First Class Magistrate, Manthani.

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Between:

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Yeru Mallamma, Wo. Rajaiah, Aged about 55 Years, Occ. Coolie, Fl/o. Kurampalli, Kalwacherla Village, Kamanpur Mandal, Peddapalli District.

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...PETITIONERY PETITIONER/ DEFENDANT NO.3

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AND

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I Deva Vanamala, W/o. Ramaswamy, Aged about 55 Years, Occ. Household, Rl/o. Kalwacherla Village, Kamanpur Mandal, Peddapalli District. ....RespondenU Respondent No.1/ Plaintiff

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Penchakala Srinu, S/o. Bheemaiah, Aged 38 years, Occ. Employee in Singareni Rl/o. centenary Colony, Kamanpur, Peddapalli District.

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Afzal, S/o. Murad Sahab, Aged 55 Years, Occ. Agriculture, Fl/o. Gundaram Village, Kamanpur Mandal, Peddapalli District-

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(Respondents 2 and 3 are not necessary parties to present CRP)

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...RESPONDENT/ RESPONDENT NO,2 & 3/ DEFENDANT 1 & 2

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lA NO: 2 OF 2022

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Petition under Section 151 CPC^praying that in the circumstances stated in the affidavit filed therewith, the High Court may be^pleased to stay of all^further proceedings in E.P.No. 12 of 2022 in OS.No.26 of 2016 on the file of the Principal Junior Civil Judge, Manthani, pending disposal of the main CRP

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For the Petitioner: SRI KONGALA MOHAN GOUD, Advocate

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Forthe Respondent No.1 : SRI H.C.UPADHYAY, Advocate

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Forthe Respondent Nos.2 & 3 : NOT NECESSARY PARTIES^{lN CRP.}

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The Court made the following: ORDER

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THE HOIYBLE SRI JUSTICE M. LAXMAN

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CML REVISION PETITION No. 1718 of 2022

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ORDER:

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The present Revision Petition is filed against the order dated 31.12.2027 in LA. No.35 of 2O2O and I.A. No. 46 of 2O2O in O.S. No. 26 of 2016 on the file of the Principal Junior Civil Judge, Manthani, wherein and whereby the application filed by the petitioner herein for condoning the delay of 69 days in filing application to set aside ex parte decree, was dismissed.

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The revision petitioner is defendant No.3, respondent No.1 herein is the plaintifl and respondents No.2 and 3 herein are defendant Nos.1 ald 2 in the suit.

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Respondent No.l filed the aforesaid suit for^perpetual injunction. In the suit, summons were served on the^revision petitioner, but he did not turn up to the summons. Basing on the evidence placed by respondent No.l,^{ex parte decree was} passed.

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On knowing the ex parte decree,^{the present applicationis} Iiled by the revision petitioner^{along with the application to set} aside ex parte decree. The^{C3urt below dismisseddelay} -/ €\ \

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ML.JCRP No.1718 ot 2022 CRP No.1718 of 2022 condonation petition and consequently, dismissed the

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application to set aside ex parte decree.

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The petitioner herein has given reasons that the deiay was on account of some negotiations took place in the viliage before the elders in between the petitioner arrd respondent No.1 after receipt of summons and the elders advised respondent No.1 to withdraw the suit. Having verified the documents produced by both the parties, respondent No. 1 undertook to withdraw the suit. The petitioner was under the impression that respondent No.1 withdrew the suit as such he could not participate in the suit proceedings.

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The respondent filed counter denying the allegation. According to him, there is no such elders' meeting ald the same was invented for the purpose of^justifying the inaction on the part of the petitioner. The Court below after appreciating the facts on record found that no sufficient cause is shown to condone delay.

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The Supreme Court in case of ESHA BHATTACHARJEE Vs. MANAGING COMMITTEE OF RAGHUNATHPUR NAFAR ACADEMY

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ML,JCRP No.17l8 of 2022 CRP No. 1718 of 2022

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AND OTHERST has exhaustively dea-lt with the principles relating

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to condonation of the delay and they are hereunder.

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"From the aloresaid authorities the principtes that can broadly be culled out are:

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i) There should be a liberal, pragmatic, justice-oriented, non- pcdantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove in^just ice .

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ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.

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iii) Substantial^justice being paramounl. and pivotal the tecltnioal considerations should not be given undue and uncalled fbr emphasis.

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iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

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v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

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vi) It is to be kept in mind that adherence to strict proof should not affect public^justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure oljustice.

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vii)^'l'he concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unlettered free play.

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viii) There is a distinction between inordinate delay and a delay ol short duration or few days, lor to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

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ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courls^are

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t (2ot3l 12 SCC 649

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ML.JCRP No.\718 ol 2022 CRP No. 1718 of 2022

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required to r.veigh the scale of balance of justice in respeci of both parties and the said principle cannot be given a total go by in the name of liberal approach.

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x) If the explanation oflered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose thc other side unnecessarily to face such a litigation.

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xi) It is to be bome in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

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xii) The entire gamut of facts are to be careiully scrutinized and the apprcach should be based on the paradigm ofjudicial discretion which is for-urded on objective reasoning and not on individual perception.

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xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

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To the aforesaid principles we may add some morc guidelines taking note ofthe present day scenario. They are: -

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a) An application for condonation of delay should be drafted rvith careful concern and not in a hall hazard manner harbouring tl-re notion that the coufts are required to condone delay on the bedrock ol the principle that adjudication of a lis on merits is seminal to justice dispensation system.

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b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

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c) Though no precise formula can be laid down rcgard being had to the concept of judicial discretion, yct a conscious effort for achieving consistency and coilegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

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d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant mamer requires to be curbed, of course, within legal parameters.

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A reading of the above principles laid down by the Apex Court, it is clear that while considering the sufficient cause, a distinction has to be made between the inordinate delav and

i I

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ML,JCRP No.1718 of 2022 CRP No. 1718 of 2022

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delay of short duration. More liberal approach is adopted in case ol delay r,r.hich is not inordinate deiay and there should not be a pedantic approach. The technicality should not come in the way of adjudicating rights on merits.

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The reasons shown by the petitioner is also plausible in the light of the background in which the parties are placed. The petitioner is a poor lady belonging to a small village ln Kurampalli, Kalu,acherla Village, Kamanpur Mandal, Peddapalli District and she is a Coolie by profession. In such situation, parties normally apt to resolve the disputes in the village. If it is beyond the scope of village elders, then only they would approach to the legal system. Considering the above background of petitioner and to adjudicate the matter on merits, this Court is inclined to allow the Civil Revision Petition subject to certain conditions.

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Accordingly, the Civil Revision Petition is allowed without costs as lollows:

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i) The impugned order of the tria-l Court is set aside and the delay is condoned.

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ML,JCRP No.17lB ol 2022 CRP No. I7 l8 of 2022 ii) The trial Court is directed to restore the application fiied to set aside tlle ex parte decree and pass appropriate order forthwith.

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iii) After application is allowed, the petitioner shall cooperate for early disposal of the suit and if requires short adjournments will have to be given for early disposal.

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iv) The Trial Court is directed to see that the suit is disposed off within 3 months from the date of receipt of copy of this order and if requires,.on weekly base, trial may be lixed.

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As a sequel, pending miscellaneous applications, if any, shall stand closed.

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sd/-N RAJA GOPAL ASSISTANT REGISTRAR //TRUE COPY// / SECTION OFFICER

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The Principal Junior Civil Judge-cum- Principal^{Judicial First Class Magistrate,} Manthani, Karimnagar District.^{(By RPAD)}

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One CC to Sri Kongala^lVlohan Goud,^Advocate [OPUC]

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One CC to Sri H.C.Upadhyay,^Advocate [OPUC]

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Two CD Copies

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One Spare Copy

th.-

HIGH COURT

DATED:2610912022

ORDER

CRP.No.1718 ot 2022

ALLOWING THE CRP, WITHOUT COSTS.

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Yeru Mallamma v. Deva Vanamala and 2 others

Case brief

What is this about?

What did the court decide?

Yeru Mallamma v. Deva Vanamala and 2 others

Case brief

What is this about?

What did the court decide?

What the court decided

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