Andhra Pradesh High Court - Amravati
M Gopala Naidu vs N Neela on 13 November, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Civil Revision Petition No.2748 of 2019
ORDER:
1. This revision petition under Article 227 of Constitution of India is filed, questioning the order in I.A No.617 of 2017 in O.S No.31 of 2015 dated 17.08.2019, whereby the petition under Section 5 of Limitation Act to condone delay of 296 days in filing petition under Order IX, Rule 13 of Civil Procedure Code (for short 'C.P.C'), to set aside the exparte decree passed against the petitioner herein/defendant on 29.08.2016.
2. The petitioner herein/defendant filed petition under Section 5 of Limitation Act, to condone delay of 296 days, alleging that the suit is filed for partition, based on false allegations. On receipt of notice/summons, the petitioner engaged an advocate and the village elders advised the plaintiff/respondent herein (for the sake of convenience, the parties will be referred as arrayed before the trial court) to withdraw the suit, after due negotiations. She agreed for withdrawal and due to faith on her, petitioner, with the impression that the respondent will withdraw the suit, not approached his counsel. But to the utter surprise of the petitioner, he received summons issued by advocate commissioner, immediately enquired about the stage of the suit, came to know that an exparte decree was passed against him on 29.08.2016 and also based on the said exparte decree, the plaintiff filed I.A No.103 of 2017 for passing final decree, where an advocate commissioner was appointed for division of the properties. Thus, the petitioner was prevented by a good cause which is beyond his reasonable control and the petitioner has good cause for 2 MSM, J crp_2748_ 2019 setting aside the exparte decree, requested to condone delay of 296 days in filing petition and pass appropriate orders.
3. The respondent filed counter, contending that the petitioner admittedly engaged an advocate, but did not prosecute the proceedings, knowing fully well that the proceedings are pending before the court, while denying the alleged advise of the elders to withdraw the suit. The respondent also contended that delay was not properly explained; that there are no bonafides in the petition and requested to dismiss the petition.
4. The trial court by referring various judgments, more particularly Dudam Bharathi v. Gajula Sujatha and others1 and Chennai Metropolitan Water Supply @ Sewarage Board and others v. T. T Murali Babu2, dismissed the petition, holding that the petitioner failed to substantiate the contention that he was prevented by sufficient cause, from appearing before the court, prosecuting the proceedings, thereby the inordinate delay cannot be condoned.
5. Aggrieved by the order, passed by the trial court, the present revision under Article 227 of Constitution of India is filed, mainly contending that the trial court ought to have offered an opportunity to the petitioner to contest the suit and decide the matter on merits, when the petitioner is able to show a good cause, but committed an error in dismissing the petition. The trial court also failed to consider the cause shown by the petitioner and circumstances under which the petitioner did not prosecute the proceedings, after engaging a counsel, 1 (1999) 5 ALT 504 2 (2014) 4 SCC 108 3 MSM, J crp_2748_ 2019 which is good cause to condone delay of 296 days in filing a petition. The court must always venture to decide the matters on merits, more particularly when substantial rights of the parties are involved in the suit and requested to set aside the order, passed by the trial court, while allowing the petition under Section 5 of Limitation Act, condoning delay of 296 days in filing petition under Order IX, Rule 13 of C.P.C, requested to pass appropriate orders.
6. During hearing, the learned Counsel for the petitioner Sri Eswaraiah Chowdary, while reiterating the contentions, relied on an unreported judgment of Apex Court in Bhivchandra Shankar More v. Balu Gangaram More and others in Civil Appeal No.4669 of 2019 and on the strength of the principle laid down in the said judgment, the learned Counsel, requested to set aside the order, since the order is contrary to the principles laid down by the Apex Court in the said judgment.
7. Whereas the Counsel for the respondent Sri Uday Kumar, supported the order, based on the judgments referred above and that the cause shown by the petitioner is not even sufficient cause, but it is a good cause, according to the allegations made in the affidavit and sufficient cause is distinct from good cause, in the absence of sufficient cause, which prevented the petitioner from prosecuting the proceedings, the court cannot condone abnormal delay of 296 days, in filing petition to set aside the exparte decree and that too when it is a purely discretionary power. When the trial court exercised such discretionary power, this Court while exercising power under Article 4 MSM, J crp_2748_ 2019 227 of Constitution of India, cannot interfere with such order, supported by reasons and requested to dismiss the revision petition filed under Article 227 of Constitution of India.
8. Briefly stated, cause for condoning delay is because of the advise of elders to the respondent to withdraw the suit, thereby the petitioner did not approach the counsel to prosecute further proceedings and remained exparte. However, for better appreciation, the specific cause shown in the affidavit filed along with the revision petition is extracted hereunder:
"I submit that the plaintiff filed the above suit with all false and frivolous allegations for partition. Immediately, after receiving notices, I engaged an advocate and in our village some of our relatives, elders advised the plaintiff to withdraw the suit and after due negotiations, she agreed for withdrawal and due to faith on her, I am under the impression that she has withdrawn the suit. I had not approached my counsel, but to my utter surprise, I received notice issued by an Advocate Court Commissioner and immediately I enquired about the matter and I came to know that an exparte decree was passed against me on 29.08.2016 and also basing on the said exparte decree, the plaintiff filed I.A No.103 of 2017 for passing of final decree, wherein a Court Commissioner was appointed for division properties."
On analysis of the cause shown by the petitioner, because of advise of elders to the respondent to withdraw the suit, he did not prosecute, though he is aware about pendency of the proceedings, having engaged a counsel, on receipt of summons in the suit. But only came to know that an exparte decree was passed against him, on receipt of notice from the advocate commissioner, who was appointed by the court in I.A No.103 of 2017, for physical division of the properties, on ground for allotment of share to each of the parties to the suit for partition. The affidavit is totally silent on what date the 5 MSM, J crp_2748_ 2019 petitioner received notice from the advocate commissioner, appointed as per orders in I.A No.103 of 2017, except making a bald allegation that the petitioner received notice through advocate commissioner, immediately he enquired about the matter and came to know that an exparte decree was passed against the petitioner on 29.08.2016. In the absence of any details, more particularly the date of receipt of notice and acquiring knowledge about passing of exparte decree, the abnormal delay of 296 days cannot be condoned on mere asking. The respondent in the counter denied the alleged advise of the elders to withdraw the suit and therefore, it is a question of fact to be decided by the trial court. However, the petitioner did not file any affidavit of the elder who allegedly advised the respondent to withdraw the suit, except the ipsi dixit of the petitioner. Therefore, the cause shown by the petitioner is not supported by any other independent material, except the allegations in the affidavit.
9. In any view of the matter, the Counsel for the petitioner relied on the judgment in Bhivchandra Shankar More v. Balu Gangaram More and others dated 07.05.2019 in Civil Appeal No.4669 of 2019 of Division Bench of Apex Court, adverted to earlier judgment in B. Madhuri Goud v. B. Damodar Reddy3. The consistent view taken by the Apex Court is that the words "sufficient cause" should be liberally construed and the District Court rightly condoned delay in filing the appeal. It was submitted that unless the delay in filing an appeal is condoned on the ground that the appellants and respondent Nos.14 and 15 will lose their valuable rights in the sit property which is joint 3 (2012) 12 SCC 693 6 MSM, J crp_2748_ 2019 family property, without having an opportunity to contest the same on merits. The Apex court further went on to refer several judgments. By applying the principles laid down in B. Madhuri Goud (3rd cited supra) and N. Bala Krishnan v. M. Krishna Murthy4 where the court held that:
"Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."
In view of law, if there is negligence on the part of the petitioner and it is deliberate inaction or lack of bonafides, the Court cannot condone delay in filing petitions or appeals. The Court held that the petitioner was prevented by sufficient cause i.e. cause beyond control of the petitioner.
10. The law is consistent on this aspect. The Apex Court in Ram Nath Sao @ Ram Nath Sahu and Others vs Gobardhan Sao and Others5, the held that:
In the case of N.Balakrishnan v. M.Krishnamurthy (1998) 7 Supreme Court Cases 123, there was a delay of 883 days in filing 4 (1998) 7 SCC 123 5 2002 (1) 769 7 MSM, J crp_2748_ 2019 application for setting aside exparte decree for which application for condonation of delay was filed. The trial court having found that sufficient cause was made out for condonation of delay, condoned the delay but when the matter was taken to the High Court of Judicature at Madras in a revision application under Section 115 of the Code, it was observed that the delay of 883 days in filing the application was not properly explained and it was held that the trial court was not justified in condoning the delay resulting into reversal of its order whereupon this Court was successfully moved which was of the view that the High Court was not justified in interfering with order passed by trial court whereby delay in filing the application for setting aside exparte decree was condoned and accordingly order of the High Court was set aside. K.T.Thomas, J., speaking for the Court succinctly laid down the law observing thus in paras 8, 9 and 10 :
"8. The appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.
9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
10.The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."
In another judgment in N. Bala Krishnan (4th cited supra), the Apex Court specifically held that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a 8 MSM, J crp_2748_ 2019 certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation, whereas, in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
In another judgment in The Motor and General Finance Limited v. S. Durailingam6 the Division Bench held that "the defendant is entitled to file an application to set aside the ex-parte decree passed against him within 30 days from the date of knowledge of decree, when summons are not duly served on him. Further, the Division Bench held that Substituted service under Order V Rule 20 of C.P.C is of no assistance to plaintiff, if defendant files an application to set aside ex-parte decree within 30 days from the date of knowledge."
6 2009 (3) CTC 342 9 MSM, J crp_2748_ 2019 In Ravi Enterprises v. Indian Bank7, the Division Bench held that "the length of delay is immaterial and bona fides of party cannot be held against him merely because petition filed by him to set aside exparte order was dismissed for default and application to restore the same was also dismissed."
In Arun Alexander Lakshman v. A.P Vedavalli8 wherein the Division Bench held as follows:
"33.In our view, explanation for delay of 714 days in filing the application under Or.9 R.13 CPC is satisfactorily explained. While condoning the delay, the Court should strike a just balance between the right enured to the plaintiff on the expiry of the period of limitation and the inconvenience caused to the respondent/plaintiff. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellants' can be compensated by awarding appropriate and exemplary cost."
11. In view of the law declared by the courts referred above, the petitioner must show sufficient cause, which prevented him from prosecuting proceedings. It is evident from the para No.2 of the affidavit filed along with the revision petition, the petitioner could not prosecute the proceedings, though he engaged a counsel, on receipt of summons, on account of advise of the elders to the respondent to withdraw the suit. But this fact is not supported by any material and no affidavit of the elder who allegedly advised the respondent is placed on record before the trial court or before this Court, to accept the contention of the petitioner to conclude that the cause shown by the petitioner is sufficient cause. The words "sufficient cause" is not defined anywhere, but it can be described as a cause which is beyond the control of the petitioner. In the facts of the present case, the petitioner engaged a counsel, on receipt of summons in the suit, but 7 (2008) 1 CTC 785 8 2007 (4) CTC 745 10 MSM, J crp_2748_ 2019 slept over for more than a year and alleged in the affidavit that he came to know about passing of exparte decree, only on receipt of notice from the advocate commissioner, appointed by the trial court in I.A No.103 of 2017 for physical division of properties in final decree petition. The details like date of receipt of notice are not disclosed in the entire affidavit, except a bald statement that the petitioner came to know about passing of an exparte decree, only after receipt of notice from the advocate commissioner, would not form the basis for recording finding that the petitioner was prevented by sufficient cause. Though the term sufficient cause is to be construed liberally, the said liberal approach cannot be stretched to such an extent, to accept any cause which is mentioned in the affidavit as sufficient cause, to frastruate the law of limitation. Though the parties are aware about the pending proceedings, failure to prosecute the proceedings, inventing a lame excuse that the respondent was advised by the elders to withdraw the suit, slept over for nearly a year in filing petition, after passing of exparte decree, though the time during pendency of the suit is not relevant. Therefore, the contention of the petitioner would clinchingly establish the malafide or inaction or negligence on the part of the petitioner in prosecuting the proceedings. Even otherwise in various judgments of the Apex Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & others9, the Court held that there should be a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an Application for condonation of delay. The Hon'ble Supreme Court referred to its earlier judgments in G. Ramegowda, 9 2013 (5) CTC 547 (SC) 11 MSM, J crp_2748_ 2019 Major and others v. Special Land Acquisition Officer, Bangalore10, O.P. Kathpallia v. Lakhmir Singh (dead) and others11, State of Nagaland v. Lipok AO and others12, New India Insurance Co. Ltd. v. Shanti Misra13, Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and another14, which declared that the Court should be liberal in dealing with Condone Delay Petition. The principles are elucidated in the said judgment and Paragraphs 15 & 16 of the Judgment is usefully extracted as follows:
"15. From the aforesaid authorities the principles that can broadly be culled out are:
(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice.
(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.
(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
(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.
(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
(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 justice.
(vii) The concept of liberal approach has to en capsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
(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. 10 1988 (2) SCC 142 11 1984 (4) SCC 66 12 2005 (3) SCC 752 13 1975 (2) SCC 840 14 2010 (5) SCC 459 12 MSM, J crp_2748_ 2019
(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 Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
12. The Madras High Court in A. Abitha Nachi v. Tmt.K.S Saroja in C.R.P (NPD) Nos.541 of 2015 and 4973 of 2014, concluded that;
"the Law of Limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the Applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."
13. In view of the law declared by various courts, it is difficult to apply the principles laid down in the above judgment relied by the learned Counsel for the petitioner. More so, the Supreme Court in Lanka Venkateswarlu (D) by L.Rs. v State of A.P. and Ors., held as follows:
"We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", justice oriented approach", "substantial justice" cannot be employed to jettison the substantial law of limitation, especially in cases where the Court concludes that there is no justification for the delay. In 13 MSM, J crp_2748_ 2019 our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers."
When no cause is shown, much less sufficient cause, to condone the abnormal delay, applying the same principle to the present facts of the case, the reason assigned by the petitioner, appears to be artificial and invented. Such lame excuse to get the delay condoned, having slept over nearly 300 days, after passing of decree and ignoring the delay that caused before passing of a decree cannot be sustained. The conduct of the petitioner, clinchingly establish, negligence and malafides on the part of the petitioner in prosecuting the proceedings, which disentitle him to claim the discretionary relief under Section 5 of Limitation Act. When the trial court rightly exercised its discretion, while deciding the petition under Section 5 of Limitation Act, this Court would not normally venture to interfere with such discretionary order, passed by the trial court, even after reappraisal of entire material. However, the law declared in N. Bala Krishnan (4th cited supra), when the trial court dismissed the petition, this Court can again appreciate the facts. Even by applying the principles laid down in the above judgment, reappraisal of the entire material on record, it 14 MSM, J crp_2748_ 2019 is difficult to accept the contention of the petitioner that he was prevented by sufficient cause. More curiously, in the entire affidavit, no details were furnished as to the date of receipt of notice from the advocate commissioner, except pleading that he has got good cause, not even sufficient cause. Hence, I find no error in the order passed by the IV Additional District Judge, Tirupati, in I.A No.617 of 2017 in O.S No.30 of 2015 dated 17.08.2019, warranting interference of this Court, while exercising power under Article 227 of Constitution of India, consequently the revision petition is liable to be dismissed.
14. In the result, the revision petition is dismissed. There shall be no costs.
15. Consequently, miscellaneous petitions, pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated 13.11.2019 Rvk