Andhra Pradesh High Court - Amravati
Pilla Apparao, vs Thammina Rama Rao, on 25 November, 2022
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.1496 of 2022
Between:
Pilli Apparao, S/o Appala Naidu, Hindu, aged
about 55 years, residing at D.No.1-46-125,
Ramanapeta, Tagarpuvalasa,
Bheemunipatnam Mandal, Visakhapatnam
and two others.
... Petitioners/Defendants.
Versus
Thammina Ramarao, S/o late Ramakrishnaiah
Hindu, aged 63 years, residing at D.No.5-55-
38/1, Santhapeta, Bheemili Road,
Chittivalasa, Bheemunipatnam Mandal,
Visakhapatnam and two others.
... Respondent/Plaintiff.
Counsel for the petitioners : Sri G.V.S.Kishore Kumar
Counsel for respondent : Ms.Lakshmi Prameela,
representing Smt.B.Neeraja
Sudhakar Reddy
ORDER
Defendants in the suit filed the above revision against the order dated 25.02.2022 in I.A.No.572 of 2019 in O.S.No.390 of 2014 on the file of VI Additional Senior Civil Judge, Visakhapatnam.
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2. Respondent, being the plaintiff filed suit O.S.No.390 of 2014 against the respondents/defendants for recovery of amount.
3. Defendants did not contest the suit and hence, they were set exparte on 01.05.2014 and eventually, decree was passed on 17.12.2014.
4. Initially, E.P.No.165 of 2016 was filed by the decree holder, wherein notice was ordered and the same was received by petitioners on 25.03.2017. Thereafter I.A.No.572 of 2019 was filed to condone the delay of 1666 days in filing the petition to set aside the exparte decree dated 17.12.2014.
5. In the affidavit filed in support of the petition, it was contended interalia that plaintiff is none other than husband of 2nd defendant's sister; that in view of family disputes, plaintiff filed suit for recovery of amount on the strength of promissory note; that suit promissory note is forged one; that after receipt of summons from the Court, defendants asked the plaintiff about filing of suit and placed the matter before the elders; that plaintiff and his wife, who filed separate suit O.S.No.391 of 2014, agreed to withdraw the suits and hence, 3 they could not attend the Court; that they received notice in E.P.No.123 of 2019 and contacted the advocate and on enquiry, they came to know that petitioners/defendants were set exparte on 01.05.2014 and an exparte decree was passed on 17.12.2014; that delay in filing the petition is neither willful nor wanton; that they came to know about the exparte decree, when they received notices in execution and prayed the Court to condone the delay of 1666 days in filing the petition.
6. Counter was filed by respondent/plaintiff and while denying the averments in the affidavit, it was contended interalia that petitioners having received summons in the suit did not contest the suit and hence, they were set exparte on 01.05.2014 and exparte decree was passed on 17.12.2014; that E.P.No.165 of 2016 was filed on 31.03.2017; that notices were served on the petitioners; that E.P. was dismissed as not pressed in view of difference in schedule; that present E.P.No.123 of 2019 was filed and after receipt of summons, the present application is filed with a delay; that the delay was not properly explained and thus prayed to dismiss the petition.
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7. By order dated 25.02.2022, Court below dismissed the petition. Against the said order, the above revision is filed.
8. Heard Sri G.V.S.Kishore Kumar learned counsel for the petitioners and Ms.Lakshmi Prameela, learned counsel representing Smt.B.Neeraja Sudhakar Reddy, learned counsel for the respondent.
9. Learned counsel for revision petitioners would submit that suit promissory note is rank forgery and in fact, the matter was placed before the elders and the plaintiff agreed to withdraw the suit. Having believed the same, petitioners could not contest the suit. He would submit that petitioners came to know about the decree when they received notices in E.P.No.123 of 2019 for attachment and sale of immovable property. He would also submit that petitioners explained the delay by showing sufficient cause and the technicalities of the law should not prevent the Court from doing substantial justice.
10. Learned counsel for respondent supported the order of the trial Court.
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11. In the light of submissions made by learned counsel on either side, the following point arose for consideration:
Whether the petitioners showed sufficient cause to condone the delay of 1666 days in filing the petition under Order IX Rule 13 of CPC to set aside exparte decree in O.S.No.390 of 2014?
12. Suit O.S.No.390 of 2014 was filed for recovery of amount on the strength of promissory note. Defendants admitted regarding receipt of summons from the Court. However, contended that after receipt of summons they approached the plaintiff and placed the matter before the elders and the plaintiff agreed to withdraw the suit and hence, they could not contest the suit.
13. No material is placed before the Court to substantiate the said contention. Except self-serving statement made by the deponent, absolutely there is no evidence before the Court.
14. After decree, the decree holder filed E.P.No.165 of 2016. Executing Court issued notices and the same were received by petitioners on 25.03.2017. After receipt of notices also, no 6 contest was made by revision petitioners, however the said E.P was dismissed as not pressed, since the boundaries are not tallied. Again the decree holder filed E.P.No.123 of 2019 and after receipt of notices; the present application is filed to condone the delay of 1666 days.
15. While considering the application to condone delay, the Court must see whether the delay is inordinate or few days as also the reasons assigned are sufficient, valid and cogent. Party seeking condonation of delay needs to explain the delay properly, the grounds which are reasonable and plausible.
16. In Balwant Singh (dead) v. Jagdish Singh and Ors.1 after referring to earlier case law, the Hon'ble Apex Court held at paragraphs 24 and 25 as under;
"We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation.
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 1 (2010) 8 SCC 685 7 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."
17. In Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy2, the Hon'ble Apex Court broadly culled out the following principles:
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 2 (2013) 12 SCC 649 8 that in the ultimate eventuate there is no real failure of justice.
vii) The concept of liberal approach has to encapsule 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.
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.
16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
a) An application for condonation of delay should be drafted with careful concern and not in a half hazard 9 manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
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.
c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
d) The increasing tendency to perceive delay as a non-
serious matter and, hence, lackadaisical propensity can be exhibited in a non-challan manner requires to be curbed, of course, within legal parameters.
18. A conspectus of above the judgments referred to supra, the Hon'ble Apex Court observed that length of delay is no matter, acceptability of the explanation is the only criterion. It was further held that the primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. Rules of limitation are not meant to destroy the rights of parties and they are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. Hon'ble Apex Court also cautioned that if the delay is occasioned by party deliberately to gain time, then the Court should lean against acceptance of the explanation. The explanation should not be fanciful and concocted. The Courts 10 while dealing with an application to condone delay should keep in mind the right accrued to other side and should deal with such application with utmost care.
19. Keeping in view the expression of the Hon'ble Court, this court has to see whether the petitioners properly explained the reasons to condone the delay. In the considered opinion of the court the revision petitioners failed to explain the inordinate delay. The reasons assigned by the petitioners to condone the delay not sufficient. No evidence was placed to substantiate the contention that matter was placed before the elders.
20. Apart from that, petitioners having received notices in E.P.No.165 of 2016 on 25.03.2017 did not disclose the said fact in the affidavit filed in support of the petition, which manifests that petitioners did not disclose the true facts to the Court. Had the petitioners are vigilant, they would have approached the Court at the earlier point of time when they received notices in E.P.No.165 of 2016.
21. The law of limitation is founded on public policy. It is enshrined in the maxim interest reipublicae ut sit finis litium 11 (it is for the general welfare that a period be put to litigation). The idea is that every legal remedy must be kept alive for legislatively fixed period of time. As observed supra, petitioners having received notices in E.P.No.165 of 2016 failed to take steps immediately. Had the petitioners are vigilant in prosecuting the case, Court would have definitely come to their rescue. Vigilantibus non dormentibus jura subveninet, means that Court protects those who are vigilant about their rights. However, the facts of the case did not disclose that petitioners are vigilant. The reasons assigned by the petitioners in the affidavit are not sufficient to condone the delay of 1666 days. The Court below having considered all these aspects dismissed the application.
22. The scope of revision under Article 227 of the Constitution of India was considered by Hon'ble Apex Court in Surya Dev Rai vs. Ram Chander Rai and Ors.3. The order of the lower is neither perverse nor amounts to failure to exercise jurisdiction vested with it. Hence, the order of the trial Court dismissing the petition does not call for 3 (2003) 6 SCC 675 12 interference of this Court under Article 227 of the Constitution of India.
23. Accordingly, the Civil Revision Petition is dismissed at the admission stage. No order as to costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J 25th November, 2022 PVD