Andhra Pradesh High Court - Amravati
Rapaka Anjana Rao, vs Rapaka Chandrasekhara Rao, on 14 October, 2020
Author: R.Raghunandan Rao
Bench: R.Raghunandan Rao
THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
I.A.No.2 of 2019
And
A.S.No.414 of 2019
JUDGMENT:
I.A.No.2 of 2019 has been filed by the appellant/plaintiff for condonation of delay of 212 days in filing the appeal.
2. The present appeal has been filed by the appellant/plaintiff, aggrieved by the judgment and decree dated 01.09.2017 in O.S.No.53 2009 in the Court of the Senior Civil Judge, Razole.
3. The appellant, who is father of the respondents, had filed the above suit for cancellation of two settlement deeds dated 04.05.2007 and 29.03.2008 under which he had executed family settlement deeds in favour of the respondents herein. Apart from seeking cancellation of the aforesaid settlement deeds, the appellant also sought partition of the properties, which were the subject matter of the settlement deeds. This suit was dismissed by the trial Court after trial and hearing of the parties to the suit.
4. The suit was dismissed on 01.09.2017 and an application for certified copy was filed on 04.09.2017. The certified copies were made ready and delivered on 13.10.2017 to the Advocate of the appellant/plaintiff in the trial Court.
5. The appellant claims in the affidavit filed in support of the present application that he was suffering from paralysis since October 2005 and due to the said paralysis, and hospitalization due to the treatment for kidney related ailment he was unable to contact his RRR,J 2 A.S.No.414 of 2019 advocate, because of which, he was not aware of the delivery of judgment. The appellant, in the course of the hearing filed a scan report dated 6/10/2017, to demonstrate that the appellant was suffering from kidney ailments. The appellant further submits that he came to know of the decision of the trial Court only in July, 2018 when one of his relatives visited him and informed him that the defendants are proclaiming to everybody in the village that the suit filed by the appellant was dismissed. He submits that in view of these circumstances, he was unable to file the appeal within the time and a delay of 212 days had occurred.
6. Sri S. Subba Reddy, learned counsel for the appellant has relied upon the following judgments:
1. O.P. Kathpalia vs Lakhmir Singh (Dead) And Ors.1
2. State of Nagaland v. Lipok Ao & ors.2
3. N. Bala Krishnan v. M. Krishnamurthy3
4. Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai4
7. He also relied upon the judgment of the Hon'ble Supreme Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur, Nafar Academy & ors.,5 which was relied upon by the respondents also.
8. The respondents have filed their counter and took the plea that the appellant was suffering from all the ailments mentioned in the affidavit filed in support of the application even before the commencement of the suit and as such, the ailments which did not deter 1 (1984) 4 SCC 66 2 AIR 2005 SC 2191 3 (1998) 7 SCC 123 4 2012) 5 SCC 157 5 (2013) 12 SCC 649 RRR,J 3 A.S.No.414 of 2019 him from prosecuting the suit, would not have been a hindrance in prosecuting the appeal in a timely manner.
9. Sri G.R. Sudhakar, learned counsel appearing for the respondents also submits that the respondents are children of the appellant from his first wife and the appellant is presently under the influence of his second wife, who is instigating him to prosecute the litigation against the respondents. The learned counsel further submits that after dismissal of the suit, some of the respondents had started construction of houses in their respective properties given to them under the deeds of settlement and the appellant had participated in various ceremonies relating to construction and was fully aware of the dismissal of the suit. It is further submitted that the appellant was finally forced to file the appeals at the instance of his second wife and not because of any genuine complaint of injury to the interests of the appellant.
10. The respondent relied upon the following judgments -
2. Esha Bhattacharjee Vs Managing Director, Raghunathpur Nafar Academy and others7; and
3. Brijesh Kumar and Others Vs State of Haryana8.
10. The law relating to the principles that need to be taken into account for condoning the delay in filing the appeals or other applications is fairly well settled. The party seeking condonation of delay would need to explain the delay properly and on the basis of the grounds, which are reasonable and plausible, the Courts would also have to consider whether 6 (AIR 2011 SC 1150) 7 (2013) 12 SCC 649 8 2014 (4) ALD 1 (SC) RRR,J 4 A.S.No.414 of 2019 rejection of the appeal on the ground of delay would cause substantial injustice to the parties.
11. In the present case, the pleadings of the respondents and submissions made by Sri G.R. Sudhakar would show that the respondents had been taking up further development of the property which had fallen to their share after the dismissal of the suit. In such circumstances, continuation of litigation, which would cause cloud over the title to such parties, would cause substantial injustice to the respondents.
12. Sri G.R. Sudhakar had also raised further plea that apart from delay of 212 days in filing the appeal, there was a further delay of about 262 days in representing the appeal after it had been returned with some objections. Sri Sudhakar also submits that even though the application to condone delay in representation had been allowed by this Court earlier, the said delay in representation would also be a cogent factor to be taken into account while considering the application to condone the delay in filing of the appeal itself.
13. The primary ground, raised by the appellant, for seeking condonation of delay, is that the ailments of Paralysis and Kidney problem related issues kept the appellant bed ridden and he was unable to contact his Advocate and was forced to get out of his sick bed only upon a relative informing him about the statements being made by the respondents in the village about the dismissal of the suit.
14. In support of this plea, the appellant has also produced a scan report, which reveals that the appellant has been suffering from kidney ailments and paralysis of the left leg. A closer look at the scan report shows that this is a report of 06.10.2017 and the said report does RRR,J 5 A.S.No.414 of 2019 not in any manner show that the appellant was confined to his bed or that he was in hospital.
15. The respondents on the other hand state that the appellant has been suffering from these problems even before the filing of the suit and that these problems had not handicapped the appellant from prosecuting the suit. This contention of the respondents has not been denied by the appellant. Further, the appellant himself stated, in the application, that he was attacked by paralysis in 2005.
16. In these circumstances, the version of the appellant that he was unable to approach his advocate due to hospitalization and was confined to bed for the relevant period between September 2017 to July 2018 cannot be accepted.
17. Apart from the above circumstance, the development of the property by the respondents would also have to be taken into account. The plea of the respondents that the appellant was fully aware of the construction of the houses in the disputed properties and that he had attended the house construction ceremony on 18.4.2018 has not been denied by the appellant. In such a situation, the contention of the appellant that he became aware of the dismissal of the suit in July 2018 from a relative does not inspire confidence and would have to be rejected.
18. Once these two contentions of the appellant are rejected, the natural corollary would be that the appellant has not given any convincing or plausible reason for condoning the delay in the filing of the appeal.
RRR,J 6 A.S.No.414 of 2019
19. In the circumstances, the application is dismissed. Consequentially, the Appeal is also dismissed. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.
_________________________ R.RAGHUNANDAN RAO, J.
14th October, 2020 Js RRR,J 7 A.S.No.414 of 2019 THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO A.S.No.414 of 2019 14th October, 2020 js