Andhra HC (Pre-Telangana)
Pushpagiri Mutt vs Chintakunta Erikala Reddy on 21 August, 2000
Equivalent citations: 2000(5)ALD714, 2000(5)ALT444, 2001 A I H C 196, (2000) 5 ANDHLD 714, (2000) 4 CURCC 448, (2000) 5 ANDH LT 444
ORDER
1. This revision petition is filed against the order dated 4-2-2000 in IA No.1063 of 1999 passed by the Court of Principal District Judge, Cuddapah, dismissing the application to condone the delay of 938 days in presenting the appeal against the order of the Principal District Munsif-cum-Special Officer in Andhra Tenancy Case (ATC) No.4 of 1994 dated 27-12-1996. Be it noted that the proceedings before the original authority were initiated by the tenant respondent herein under Section 10(1) of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 (hereinafter called 'the Act').
2. The petitioner herein a Pushpagiri Mutt in Cuddapah. It owns considerable extents of lands. The respondent herein is a cultivating tenant of the land admeasuring about Ac.2.83 cents. He was inducted as a tenant in 1967. After taking the land on lease he made improvements including digging well and put up an underground pipeline for irrigating the land. The petitioner herein filed ATC No.1 for 1983 before the Special Officer for evicting the respondents. The same was dismissed on 11-6-1990. The appeal under Section 16 of the Act by the petitioner herein being ATA No.3 of 1990 was also dismissed on 19-3-1994.
3. In the meanwhile, the State Legislature amended the provisions of the Act by Andhra Pradesh (Andhra Area) Tenancy (Amendment) Act, 1974 (Amendment Act) inserting sub-section (1) of Section 10, which provides that a person who is in possession of the land as a cultivating tenant will be considered as having perpetual lease to the property. As he was in possession of the land for more than 25 years, the respondent approached the Principal District Munsif-cum-Special Officer, Cuddapah under Section 10(1) of the Act and filed ATC No.4 of 1994. He sought for a declaration that he is perpetual tenant and also sought a direction to the petitioner herein to renew the lease. The petitioner opposed this. The Special Officer (the Court of District Munsif) examined the tenant as PW1 and the Manager of the petitioner as RW1 and marked Exs.A1 to A8 for the tenant. By an elaborate order following -the judgment of this Court in J. Veeraswami v. Sub-Collector, Narsapur, 1974 (2) APLJ 397, partly allowed ATC No.4 of 1994 declaring the respondent herein as a perpetual tenant and also directed the petitioner to offer the land to the petitioner if they intend to sell the same. The said order was passed on 27- 12-1996.
4. The petitioner filed an appeal before the District Judge under Section 16(2) of the Act. As there was delay of 938 days in filing the appeal, the petitioner filed IA No. 1063 of 1999 under Section 5 of the Limitation Act, 1963 for condoning the delay.
5. It is the case of the petitioner that the records relating to ATC No.4 of 1994 were misplaced and could not be traced, that the management of the petitioner-Mutt was under the impression that the Counsel for the Mutt filed an appeal, that there were frequent changes of managers and advocates for the Mutt and therefore they could not file appeal in time. The application was opposed by the respondent on the ground that the application filed by the petitioner for evicting the tenant being ATC No. I of 1983 was dismissed, the appeal therefrom was also dismissed on 19-3-1994 and the Mutt was pursuing the same regularly and that there was no change of managers during the pendency of the earlier proceedings of the proceedings in ATC No.4 of 1994 that the present Manager is working since August, 1998 and therefore there are no sufficient and valid grounds for condoning the delay.
6. The learned District Judge disbelieved the petitioner and held that wrong assumption on the part of the managers of the petitioner-Mutt will not entitle for condonation of delay of 938 days and that the petitioner failed to explain each day's delay in not filing the appeal. Accordingly, the petition was dismissed.
7. In this revision, Sri R. Subba Rao, learned Counsel for the petitioner, relies on two judgments of the Supreme Court in Collector, Land Acquisition, Anantnag v. Katiji, and N. Balakrishnan v. M. Krishnamurthy, and submits that the learned District Judge committed an error in rejecting the application under Section 5 of the Limitation Act on a technical ground that each day's delay should be explained which is contrary to law laid down by the Supreme Court.
8. Sri M.L Narasimha Reddy, learned Counsel for the respondent relies on a latest judgment of a Division Bench of this Court in State of Andhra Pradesh v. Sayannna, and submits that the petitioner has not properly explained the reasons for delay in filing the appeal, that no substantial injustice would be caused to the petitioner and as even though it is declared as perpetual tenancy in favour of the tenant the same is subject to the provisions of Sections 12 and 13 of the Act and the petitioner can always take necessary steps under these provisions for evicting the tenant.
9. The point that arises for consideration is whether the order of the learned District Judge suffers from any error of jurisdiction or error apparent on the face of the record.
10. The petitioner prayed for condonation of delay on the ground that there was frequent change of managers and advocates of the petitioner-Mutt was under the impression that the advocate filed case before the Special Officer had filed an appeal. They also stated that the case records of ATC No.4 of 1994 were lost. This was denied by the tenant, who categorically stated in the counter that one Sriramamurthy who filed an appeal before the District Judge as well as this Revision took charge in August, 1998 and the delay in filing the appeal in 1999 was not properly explained. The allegation that there was frequent change of lawyers and managers of the Mutt was not properly proved before the learned District Judge. The plea that the record was lost is inconsistent with the other pica. If the factum of loss of records is taken to be true the other allegation that the management was under the impression that the advocate filed appeal cannot be true for the simple reason that without record no advocate could have filed an appeal. Therefore, the learned District Judge was correct in observing that the wrong assumption will not entitle the petitioner to seek condonation of delay of 93 8 days.
11. The teamed District Judge also held that the petitioner failed to explain each day's delay. This observation of the learned District Judge is the basis for submission by the learned Counsel for the petitioner. In Katiji's case (supra) the Supreme Court observed that 'every day's delay must be explained' does not mean that a pedantic approach should be made and that the said doctrine must be applied in a rational common sense pragmatic manner. The Supreme Court also observed as under:
"When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay".
12. In Balakrishnans' case (supra) the Supreme Court laid down as under:
"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 case 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 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 untrammelled by the conclusion of the lower Court",
13. The Supreme Court also observed that the words 'sufficient cause' under Section 5 of the Limitation Act should receive liberal construction so as to advance substantial justice. In so doing, the opposite party should not be forgotten. It is apposite to extract the following the from the judgment of the Supreme Court:
"But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss."
14. In Sayanna's case the Division Bench was dealing with the question whether separate yardstick be applied while dealing with the petitions filed by the State for condonation of delay in preferring appeal. The Division Bench reviewed the entire case law on the subject and summarised the principles as under:
"(1) The expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice.
(2) 'Sufficient cause' should be adjudged on considerations of pragmatism and justice oriented approach rather than technical insistence of explaining every day's delay.
(3)(a) Generally, delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence for deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay.
(b) In every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor.
(4) The length of delay is no matter. The acceptability of the explanation is the only criterion. Sometimes, even short delay may not be condoned for want of acceptable explanation whereas in certain other cases, the delay of very long range can be condoned if the explanation is satisfactory.
(5) Limitation cannot be extended merely on equitable grounds".
15. While considering the application for condoning the delay the superior Court shall not ordinarily does not disturb the order of the lower Court accepting the explanation as sufficient cause unless the exercise of discretion is wholly arbitrary, perverse and untenable. If the lower Court refused to condone the delay, the super Court should consider the cause shown for the delay afresh and come to its own ignoring the conclusion of the lower Court. I have already held that the learned District Judge came to a correct conclusion that wrong assumption by the petitioner that the advocate had filed appeal does not by itself afford a ground for seeking condonation of delay. Further, the observation that the petitioner failed to explain each day's delay by itself cannot be a ground for revising the order, for the learned Counsel for the petitioner is not able to urge that the learned District Judge adopted a pedantic approach in applying the doctrine. It is not possible to say so.
16. Having regard to the observations of the Supreme Court in Bal Krishnan's case (supra) that a superior Court should consider the case afresh, the submission of the learned Counsel for the petitioner as well as the respondent requires to be considered. As rightly submitted by Sri M.L. Narasimha Reddy Section 10(1) of the Act only enables the tenancy to be treated as tenancy in perpetuity and as per sub-section (5) of Section 10 even a perpetual tenancy is subject to provisions of Sections 12 and 13 of the Act. Section 12 of the Act enables the landlord to seek resumption of the land for personal cultivation and Section 13 provides for termination of tenancy in the event of failure to pay rent by the tenant, subletting, denying the title of the landlord, wastage etc. Therefore, as on today, by the order of the original authority, namely District Munsif-cum-Special Officer in ATC No.4 of 1994 no substantial injustice is caused to the petitioner herein. For the purpose of a declaration as per the provisions of subsection (1) of Section 10 of the Act the law only provides that a tenant should be in possession of the land as on the date of coming into force of the Amendment Act, 1974. As the eviction petition filed by the petitioner herein being ATC No.1 of 1993 was dismissed and the appeal therefrom was also dismissed, the tenant is certainly entitled for a declaration under Section 10(1) of the Act. This aspect has certainly bearing while this Court considers whether there is any substantial injustice to the petitioner when the application for condonation of delay of 938 days is liable to be rejected or not.
17. Viewed from any angle there is no error or perversity in the order passed by the learned District Judge and there are no grounds to interfere with the order impugned in this revision petition.
18. Accordingly, the civil revision petition fails and the same is dismissed. No costs.