Dismissed

M/s Surabhi Shelters Pvt. Ltd., v. Smt. Deepa Lalchandani

Telangana HC20 Apr 2023CRP/1180/2023

Case brief

AI extract

What is this about?

The High Court dismissed a civil revision petition challenging the dismissal of an application to condone inordinate delay in filing to set aside an ex-parte judgment and decree under Article 227 and Section 151 CPC.

What did the court decide?

The application to condone the delay in filing the application to set aside judgment and decree was dismissed; the cvil revision petition was also dismissed without costs.

M/s Surabhi Shelters Pvt. Ltd., Vs Smt. Deepa… — Specific Performance | Telangana HC (2023)

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[^2s86 ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THURSDAY, THE TWENIIETH DAY OF APRIL TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE P NAVEEN RAO

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CIVIL REVISION PETITION NO: 1180 OF 2023

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Petition under Arlicle 227 of the Constitution of lndia, againsUaggrieved by the dald:21131223 in lA 612022 in o.s 133 of 20 18 on the filed on the court of lll senior Civil Judge, City Civil Court , Hyderabad.

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Between:

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M/s surabhi shelters Pvt. Ltd.- (Formerry known as M/s Surabhi sherters Ltd, Formedy known as M/S. A.S Develofers and Builders Ltd.) Reo. bv iG Managing Director Mr. S.K Ahuja, Having irs regisrered ottie at t_T_ZiiZtC, Ameerpet, Hyderabad

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...PETITIONER

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AN D

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Smt. Deepa Lalchandani, Wo. Sri. Harish Lalchandani_

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Harish Lalchandani, S/ o.Late Nandulal Lalchandani, Aged about years, Occ. Business,

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(?9tl^{R"prg:gn.ted bytheir_} son/GpA Hotder, Mr. Nitesh Latchandani, ail resrdenls ot Flat No. 3O2, Karan Residency, Sindhi Colony, p.G Roai,, Secunderabad.)

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..,RESPONDENT NO. 1 AND ZPLAINTIFFFS

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3 Prakash Hundaldas Gianchandani, S/o: Hundaldas Glanchandani, aged ;bout years. Occ. Business, Rio. pooja Coflection ,2-4_412i ilC-, first Ftrjoii--^----' Nallagutta, Ramgopatpet, Secuhderabad-500003. (Rei.-No. 5 forrnai pa.ty)

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...RESPONDENT NO.3/DEFENDANT NO.I

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IANO:1OF2 023

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Petition under section 151 cpc praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to stay the^judgment and decree of o.S. No. 133 of 2016 an the file of the Honourable lll Senior Civil Judge, City Civil Court, At. Secunderabad.

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Counsel for the Petitioner: SRl. ASHISH SAMAT Counsel for the Respondents: SRI. SULEMAN AHMED The Court made the following: ORDER

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HONOURABLE SRI JUSTICE P.NAVEEN RAO

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CTVIL REVISION PETITION NO. 1I8O OF 2023

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ORDER:

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Heard learned counsel Sri Ashish Samat for the petitioner and the Icarned counsel Suleman Ahmad for the respondents

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O.S. No. 133 of 2018 was filed in the Court of the III^Senior Civil Judge, City Civit Court, Secunderabad^praying to^{grant decreeof} specific performance. Petitioner^{hereinis second delendant. On service} ol' su mmons, [irst and second defendalts^{enteredthcirappearance.It} appears first dcfendant hled I A No. 526^{of 2916 under Order VII Rule11} CPC praying to reject the plaint. Said^{applicationwas dismissedon} \7.7.2017 and consequently suit was^{postedfor filing written statement} Though several adjournments were^{granted, no writtenstatementwas} lrled. By order dated 21.8.2Or7^{suit was adjourned to 4.9.2017 to ll/,e} written statement subject to comptiance^{of conditions imposed therein.} On 4.9.2017 as Presiding Officer^{was on casualleave,suit was adjourned} to 13.9.2017. Even though additional^{time was available, no written} statement was hled. Accordingly, Court^{forfeitedhling of written} statement. No efforts were made to seek^{leave of the Courtto file written} statement nor suit was contested. After^{conductingtrial,the trial Court} passed judgment and decree on 8.2.2019.

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As decree was not complied, plaintiff filed E.P. No. 103 of 2019 for execution of^judgment and decree passed in O.S. No. 133 of 2016.

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Revision^{petitioner entered appearance in E P on 21 '1'O'2O19and filcd a} memo to fumish.^{copies of executionpetition for hling counter'It} appears counter^{was filed in E PWhile so, on 29 11 2O2 1 petitioner} filed applications^{seeking to staythe proceedings in execution petilion on} the ground that^{he has filed application to set aside the judgmentand} decreeinthesuit.PetitionerfiledlANo6of2022inJanuary'2022 praying to condone^{the delay of 1063 days in hling applicationto set} aside ex-parte^{judgmentanddecree dated 8.2'2019' The trial Courtby} order dated 21.3.2023^{dismissedthe application to condone the delay'} Aggrieved thereby,^{this revision is preferred.}

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In the affidavit hled in^{support of the applicationto condone the} delay, it is averred that as^{per the advise of earlierAdvocateengagedby} him in the suit the deponent^{was trying to procure additional documents} in support of written statement^{to be filed and that consumed lot of time.} In the mean time,^{petitionerwas set ex-parte which fact was not} informed to the petitioner by^{Advocate on record.He came to knowthat} he was set ex-parte and execution^{petitionwas hled only recently. Not} knowing the procedure, deponent^{requested the Advocate on record to} seek time for filing necessary^{documentsrelating to allegedtransaction of} agreement of sale relied upon^{by the plaintiff and askedhim to seek stay} of execution^{proceedings.He was} under^{impressionthat staywas} granted, therefore immediate steps were not taken to file^{petitionto set} aside exparte^{judgment and decree. As he was not properlyadvised,} immediate steps^{werenot taken.He avers that for the mistake}

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comnri.cd bt'thc Advor:ate, pcritioner cannot suffer and that not filing of the u ritle n slatentent was ucilher wilful nor deliberate.

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The plca raised b1, the petitioner was resistecl by the plaintrff/ re sponclcnt. According to responden t_plaintiff, though court was gcnerousll, granting time for filing written statement, the opportunity offered by thc Court was not availed. Though the Court only denied filing of written statement, petitioner did not chose to defend the suit. He did not participate in the trial for the reasons best known to him. No steps wcre take. secking setting zrsidc order depriving him from filing written statemert and k€ pl quiet for almost two years till judgment and decree u,as passed. F'urther, though in execution petition appearance was entered, no steps were taken to file petition to set aside judgment and decree at-least al that stage .nd rvaited for more than two years to hle application to condone the delay and to file application to set aside judgment and decree. It is contended that a vague averment is made about inaction of the counsel and that cannot be a ground to allow the application to condone the inordinate delay. Delay is not properly explained, therefore, it is not a bonaf1de application alld same do not deserve any considcration.

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The trial Court observed that petitioner failed to explain what is meant by inaction on the pa-rt of earlier Advocate. A vague averment is made on a mistake committed by the earlier Advocate. The trial Court was not satisfled with the explarration offered for condoning huge delay of

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trial Court^{observed that petitioner berng a privatc} 1063 daYs.^The limitcd comPany, was^{not vigilant in prosecutingthe suil and at this} point of time^{came up withpresent petition' which is not bonafide}

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T.IntheaffidavitfrledinSupportofl.A.No.|of2023petitloner reiterated^{what was alleged beforethe trial Court and nothingmore'} Petitioner is^{only trying to shiftthe blame on the thenAdvocateon} record, but^{issitent on his conduct innot participatinginthe} proceedings before^{the trial Court, before right to file writtenstatement} was forfeited^{and in the subsequent stages of the case till j udgment and} decree was^{passed.A vague avermentis made alleging that previous} Advocate did^{not advise properly. It is admitted fact that no complaint} was hled against^{said previousAdvocate'He was alsoengaged in} Execution Petition.^{Much later Advocatewas changed and taking excuse} of changing the^{Advocate,the application to condone delay is hledbefore} the trial court^{seeking leave of t-he court to frle applicationto set aside} the^{judgment and decree.}

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From the chronolory^{of events notedabove, it is clear that right to} Iile written^{statement was forfeited on13.9 '2077 thereafter trial} proceeded and ultimatety^{judgment and decree was passed on 8'2'2019'} Between l3.g.2Ol7^{and8.2.2019 no effort was made to pray the Court to} permit the petitioner to^{file written statement' No explanation is given} why petitioner has not^{participatedin the trialEven after the judgment'} petitioner kept^{quiet. Though, notice in executionpetition wasreceived}

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and appcarar)(e \,.1s entcrcd. at that stage also petitioner has not realised the nr-'er.l to seek lcaYe O[ the Court to set asicie the judgment and decree but kept qllict lor a long trme for the reasons best known to him.

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In thc fac,-s nolcd above and as rightly contended by the plaintiffrespondent, petitioncr has to blame himself for what all transpired before the trial Court. Shifting of the blamc on the Advocate is only an excuse to cover up his lapses. As a litigant, it is his primary responsibility to participate in the procecdings and to monitor the progress of the^case. Ile has to ensur(' fihng of tht writ[en statement, filing of the^documents, cross examrnation of the plaintifl witnesses,^{leadingevidence} on^his behalf and to make arguments.^{He cannot make vague allegation against} Advocate to covcr up his lapses.^'lhe fact that he kept^{quiet for more than} two years even after receipt ol summons in E.P. No.^{103 of 2019before} lrling I.A. No. 6 ol' 2022 in the trial court^praying to^{condonethe delayof} 1063 days shows negligence in^{prosecutingthe} litigation.^{As delay is} inordinate, burden is heavy on the^{petitioner to explain each day's delay} and to show his bonahdes as to^why he^{was not able to prosecute the} suit, except makrng a vague allegation^{against Advocate,hefniserably} failed in explaining the delay. These days, it has become^{a fashion for} litigants to cover up their deltciencies and^{makeallegations against} Advocate whenevet' something goes against them. This is one such^case.

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Having regard to the facts of the case, I do not see any error committed by thc trial Court in dismissing the application to condone the

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delayinlilingapplicationtosetasidejudgmentar-rddccrecir-rO'SNo l33of2016.TherevisionfailsandaccordinglysameisdismissedMiscellaneous^{applications, if any pending,stand dismissed'}

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SO/. N. CHANDRA SEKHAR^RAO ASSISTANT. REGISTRAR //TRUE COPY// v SECTION OFFICER To, 1. The lll Senior Civil Judge, City Civil Court at Secunderabad 2. One CC to Sri. Ashish Samat, Advocate [OPUC] 3. One CC to Sri. Suleman Ahmed, Advocate [OPUCI 4- Two CD Copies

Pnr(,

HIGH COURT

DATED:2010412023

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; l1
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ORDER

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CRP.No.1180 of²⁰²³

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DISMISSING THE CRP WITHOUT COSTS.

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l^q\4<sup>r-r

M/s Surabhi Shelters Pvt. Ltd., v. Smt. Deepa Lalchandani

Case brief

What is this about?

What did the court decide?

M/s Surabhi Shelters Pvt. Ltd., v. Smt. Deepa Lalchandani

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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