Dismissed

G.Prabhaker v. Dandu Buchaiah

Telangana HC18 Oct 2022CRP/4108/2014

Case brief

AI extract

What is this about?

This judgment dismisses a Civil Revision Petition filed to challenge an impugned order rejecting an application for condonation of a 1282-day delay. The High Court held that the petitioners exhibiting lack of bona fides and failure to prosecute the suit for years precluded condonation.

What did the court decide?

The Civil Revision Petition is dismissed, confirming the orders dated 30.08.2013 in I.A. No. 1078 of 2013.

G.Prabhaker Vs Dandu Buchaiah — Civil Procedure and Limitation | Telangana HC (2022)

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[³²¹⁸ ]

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

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TUESDAY ,THE EIGHTEENTH 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 PETITION NO:4108 F 014

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Petition under Section 115 of Civil Procedure Code against by the order dated 30/8/2013 in |A.No.1078 of 2013 in O.S.No.207 of 2009 on the file of the Principal Junior Civil Judge at Sangareddy.

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Between:

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G.Prabhaker, S/o Late Narsimlu, aged 39^years, Occ: Agriculture,

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G.Mallaiah, S/o Late Veeraiah, aged 54^years, Occ: Agriculture,

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G.Yadaiah, S/o Late Veeraiah, aged 50 years, Occ: Agriculture,

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G.Srinivas, S/o Late Veeraiah, aged 44^years, Occ: Agriculture,

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G.Ravi, S/o Late Veeraiah, aged 42 years, Occ: Agriculture,

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G.Ramulu, S/o Late Sathaiah, aged 44^years, Occ: Agriculture,

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G.Nilakantam, S/o Late Sathaiah, aged 39 years, Occ: Agriculture,

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All are R/o Kothlapur Villge, Sangareddy Mandal, Medak District

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,..PETITIONERS/PETITIONERS/DEFENDANTS

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AND

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Dandu Buchaiah, S/o late Bovaiah, aged 57 years, Occ: Advocate Clerk, Rl/o Kothlapur Village, Sangareddy Mandal, Medak District.

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...RESPONDENT/RESPONDENT/PLAINTIFF

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f .A. NO: 2 OF 2014(CRPMP. NO: 5624 0F 20141

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Petition under order 39 Rure 1 & 2 Nw Section 151 of cpc praying that in the circumstances stated in the affidavit fired therewith, the High court may be pleased to grant ad-interim injunction restraining the respondent herein from alienating / creating charge over the suit schedure property viz., ar thet rand

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admeasuring Ac. 0.04 gts in Sy.No. 3281a situated at Kothlapur Village, Sangareddy mandal, Medak District, pending disposal of the above CRP

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Counsel for the Petitioners: SRI P. VENKAT REDDY

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Counsel for the Respondent: SRI CHILUMALA PRATAP REDDY

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The Court made the following: ORDER

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THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY CIVIL REVISION PETITION NO.41 08 0F 2014 ORDER:

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This Civil Revision Petition (for short 'CRP) is fited under Section 115 of Civil Procedure Code (for short 'CPCJ by the petitioners / defendants assailing the orders dated 30.08.2013 passed in I.A.No.1078 of 2013 in O.S. No.207 of 2OO9, on the lile of the Principal Junior Civit Judge, Sangareddy.

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I.A.No.t078 of 2013 was filed by the defendants under Section S of Limitation Act to condone the delay of 1282 days in firing an application to set aside the ex_parte decree dated 18.12.2OO9 in O.S.No.207 of 2009. The trial Court has dismissed the said application holding that the petitioners have simply thrown the entire blame on their counsel on record and they are not diligent in prosecuting the litigation and that the delay is not properly explained.

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Feeling aggrieved by the order impugned dated 30.08.2013 this CRp is fited a_llegrng that the tria.l Court has grossly erred in dismissing the petition seeking condonation of delay of r2g2days c rn the premise that the

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petitioners failed to give proper explanation for such delay. The Court below ought to have considered the fact^the delay occurred only due to the failure^{of the counsel for the} petitioners in informing them^{about ex-parteproceedings'} The Court below^{has also failed to consider that the} petitioners are^{ignorant of legal procedure' they belongto} ruralbackgroundandfailedtocomplytheprinciplesof natural^justice'

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Heard^{learned counsel on both sides' The} submissions^{made on either side have receiveddue} consideration^{of this Court'}

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of^{convenience' theParties} 5.^{For the sake} referred^{to asplaintiffand defendants'} iIS hereinafter arraYed^{in the originalsuit'}

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has^{filedoriginal suitln} 6. The plaintiff O.S.No'207^{of 2009on the file of the PrinciPalJuniorCivil} Judge^{atSangareddY fordeclaration and mandatory} No.328/a^{to an extent of} injunction^{in resPectof land in SY} apur^{Villageand Mandal'} Ac.0-04^{guntas' situated at Kothl} this^{case the defendants} SangareddY'^{Medak District' In}

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cRP 4r08 2014

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have caused their appearance through their counsel but after filing Vakalat, their counsel did not inform them about the steps to be taken in the suit and that ultimately they were set ex-parte and that on 18. L2.2OO9 an ex-parte decree was passed in favour of the plaintiff.

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It is alleged by the petitioners that they did not know about the ex-parte decree passed and that their counsel did not inform them and that only on 07.O7.2013, when the plaintiff along with his supporters came to the suit schedule property, the defendants have come to know about the ex-parte decree and thus, they have approached their counsel and filed this appiication under Section 5 of Limitation Act to condone the delay of 1282 days in filing an application to set aside the ex-parte decree dated 18.12.2009.

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In support of the application filed under Section 5 of the Limitation Act, the l"t defendant has filed an affidavit wherein it is alleged that he was not aware of exparte decree ald his counsel has not informed him and that only on O7.O7.2013 when the plaintiff tried to occupy

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cRP 4l0E 2014

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the suit schedule property, the defendalts came to know about the ex-parte decree and accordingly, the application to condone the said delay of 1282 days was filed.

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delendant s strenuously contends that the petitioners

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belong to rural background, they are illiterate persons, their counsel failed to inform them about the status of the suit after filing Vakalat and it is sheer negiigence on the part of learned counsel appearing on behalf of the petitioners before the trial Court and the parties cannot be made to suffer for the negligence of their counsel. He relied on the principles laid in the following decisions:

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(1) N.Balakrishnan Vs.M.Krishnamurthyr.

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(21 Collector, Land Acquisition, Anantnag and another Vs. M/s.Katiji and othore2.

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(3) O.P.Kathpalia Vs.Lakhmir Singh (diedf and others3,

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(4) Ram Surniran and others Vs.D.D.C. and othersa.

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(5) Kavali Narayana and others Vs. Kavali Chennammas

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t (t I98) 7 Supreme Court Cases 123 2 (19a7) 2 Supreme Court Cases 1O7

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3 (1984) 4 Supreme Court Cases 66

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4 (19851 I Supreme Court Cases 431

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s 2005 (r) ALT 8O5 (S.E}.)

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)

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In the decision Nos.1 to 4 cited supra the Hon'ble Supreme Court while dealing with interpretation the word 'sufficient cause' held that the word 'sufficient cause' should be construed liberally for advancing cause of substantial justice particularly, in decision No.5 cited supra, while dea-ling with the peculiar facts and circumstances of the case, considering the rural background of the appellants and prevailing illiteracy and ignorance in the country delay of six years was condoned.

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1 I . In this context, I may refer to the principles taid down by the Hon'ble Supreme Court in Esha Bhattacharjee Vs. Mg.Commit. of Raghunathpur Nafar Academy and otherso wherein the Apex Court while interpreting the provisions of Section 5 of the Limitation Act regarding condonation of delay, summarised the principles as follows:_

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(i) ?here should be a liberal, pragmatic, justice oriented, non_pedarrtic approach while dealing with an application for condonation of delay, for the courts are not supposed to legarise injustice but are obriged to remove injustice.

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6 zor1rz; scc olo

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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 parannount and pivotal the technical considerations should not be given undue and uncalled for 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 Iides 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 of .iustice.

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(vii) The concepl of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

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(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for 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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AvRJ -20 t4 cRP -410E

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..1

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(ix)^{rhe conduct} J:H::"* 1'iilI,ffi.T'; relating^{to its inactio:,","-} ,a is^{so as the fundamerital} be^{taken into considelurts} are^{requiredto weighthe scale} principle^{o tL"t} of uoth^{partiesand the said} -t]: ;"";;". of^{balanceof justice tn} a total^{go by in the name of} principle^cannot "t^;;J liberal^approach' cr^-^A i" concocted^{or the} (x) lf^{the explanationoffered is^cor} grounds^{urged in tfre applicationare fanciful' the courts} should^be "'*""tt ""t^{toe).Qose theother side} unnecessarily^{to face such a litigatton'} (xi) It^{is to be borne in mind that no one gets away} withfraud,misrepresentationorinterpolationbytaking recourse^{to the technicalitiesof law of limitation'}

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(xii) The^{entire gamut of facts are to be carefully} scrutinized^{and the approachshould bei based on the} paradigm of^{judicial discretionwhich isfounded on} objective reasoning^{and not on individualperception'}

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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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The law consistently laid down by the Apex Court says that the word 'sufficient cause' must be construed liberally to meet the ends of justice without adopting pedantic approach. But, exception to this test to be applied is whether the petitioner made out a sufficient

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cRr,_jro{?vol/

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cause or not? Tt the court has circumstances and the court "t""n""*tt"il::: shown by the petitic 't"t^{is beyond} his control' such cause is to be accepted ." sufficient cause, which prevented the petitioner from appearing before the Court on specified date. If the Court linds that the petitioner is negligen t and deiiberateiy protracting the proceedings for one reason or the other, such person is disentitled to claim the benefit of Section 5 of the Limitation Act.

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Revering back to the facts of the case on hand, on al over-all consideration of materia.l available on record, it is noticed that the defendants have filed VakaJat in original surt, larled to pursue the matter for more than four years and it is only on O7.O7.2O13 when the plaintiff has approached to the suit schedule property, they came to know about the ex-parte decree. Thus, the petitioners / defendants were not prudent and lack of bonafides imputable to them, the defendants having filed Vakalat, the statement,^{failed to proceed with and insr'rch} written s,^{1 am oi the coli-::::':::t} =:: clrcurn^stance are^{not entitled lor} deten^dants

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AVR,J cRP 4r08 2014

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inordinate delay of 1282 days in filing an application under Order 9, Rule 13 of CPC, When the facts of the present case are tested on the touch stone of the principles laid by the Apex court in Esha Bhattacharjee case (6th supra) the answer is in the negative. The petitioners / defendants have failed to place any cogent material either before this Court or before the trial Court giving satisfactory explanation lor condonation of delay. Be it stated that the concept of liberal approach has to encapsulate the conception ol reasonabieness and it cannot be allowed a totally unfettered free play. The petitioners failed to explain that the circumstalces are beyond their control over a period of l2B2 days after passing of ex-parte decree. Accordingly, I do not find any^{jurisdictional} error or inhrmity in the order impugned and it does not warrant any interference by this Court in exercise of the^powers under Article 227 of the Constitution of India.

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In the result, this CRP is dismissed conlirming the orders impugned dated 30.08.2013 passed tn I.A.No.1078 of 2013 in O.S.No.2O7 of 2OO9, on the file of the Principal Junior Civil Judge, Sangareddy. In the

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circumstances of the case, there shall be no order as to the costs. Miscellaneous applications, if any pending, shall

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stands closed.

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SD/.T.SRINIVAS DEPUTY REGISTRAR //TRUE COPY' cJp SECTION OFFICER

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