Telangana High Court
M. Sita Rama Raju vs D.K.Srinivas Raju Died on 24 March, 2022
THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
CRP Nos.3100, 3107 and 3154 of 2014
COMMON ORDER:
1. a) C.R.P.No.3100 of 2014 is filed under Article 227 of the Constitution of India assailing the order dated 05.06.2014 in I.A.No.707 of 2013 in O.S.No.488 of 2010 on the file of the IX Additional Chief Judge, City Civil Court at Hyderabad. The said I.A. was filed under Section 5 of the Limitation Act read with Section 151 of the Civil Procedure Code (for short 'CPC') to condone the delay of 1713 days in filing an application to bring the legal representatives of the deceased/respondent/first defendant on to record.
b) C.R.P.No.3107 of 2014 is filed under Article 227 of the Constitution of India assailing the order dated 05.06.2014 in I.A. No.4222 of 2009 in O.S.No.159 of 2008 on the file of the IX Additional Chief Judge, City Civil Court at Hyderabad. The said I.A. was filed under Section 5 of the Limitation Act read with Section 151 of CPC to condone the delay of 469 days in filing an application to bring the Page 2 of 12 AVRJ CRP Nos.3100, 3107 & 3154 of 2014 legal representatives of the deceased/respondent/first defendant on to record.
c) C.R.P.No.3154 of 2014 is filed under the Article 227 of the Constitution of India assailing the order dated 05.06.2014 in I.A.No.709 of 2013 in O.S.No.620 of 2011 on the file of the IX Additional Chief Judge, City Civil Court at Hyderabad. The said I.A. was filed under Section 5 of the Limitation Act read with Section 151 of CPC to condone the delay of 1713 days in filing an application to bring the legal representatives of the deceased/respondent/first defendant on to record.
2. In all the above Original Suit bearing Nos.488 of 2010, 159 of 2008 and 620 of 2011, though the plaintiffs are different, all these three suits were filed against the common defendant, Sri D.K. Srinivas Raju. It appears, during pendency of the original suits, the defendant died. The plaintiffs have filed applications to condone the delay in bringing the legal representatives of the deceased- defendant on to record. The trial Court has dismissed IA No.707 of 2013 in OS No.488 of 2010, IA No.4222 of 2009 Page 3 of 12 AVRJ CRP Nos.3100, 3107 & 3154 of 2014 in OS No.159 of 2008 and IA No.709 of 2013 in OS No.620 of 2011, as per the orders dated 05.06.2014. Accordingly, since the common question is involved and the defendant in all the above suits is common, it is proposed to dispose of all three CRPs together, through this common order.
3. The plaintiffs have filed the above original suits against the sole defendant for recovery of money and when the suits were posted for trial, the plaintiffs have come to know that the sole defendant died on 05.05.2018 and to that effect, defendant's counsel has also filed a Memo before the trial Court. Whereas, copy of Memo was received by the junior counsel, Sri Nagabushanam and later he left the office and he is not pursuing the matter. The plaintiffs were under the impression that the junior counsel- Nagabushanam is pursuing the matter. It is only on 07.07.2009 they have come to know about the said fact that junior counsel is not pursuing the matter. Thus there is a delay of 1713 days in bringing the legal representatives of the deceased-defendant on to record in O.S.No.488 of 2010. Similarly, there is a delay of 469 days in bringing Page 4 of 12 AVRJ CRP Nos.3100, 3107 & 3154 of 2014 the legal representatives of the deceased-defendant on to record in O.S.No.159 of 2008. Similarly, there is a delay of 1713 days in bringing the legal representatives of the deceased-defendant on to record in O.S.No.620 of 2011.
4. The trial Court after elaborate discussion dismissed all these applications holding that the version of plaintiffs is not believable, at one point of time it is stated that junior counsel left the office and at another point of time it is mentioned that transfer OP was filed and stay was granted and they were not aware of the proceedings and when the stay is vacated. Hence, the version of plaintiffs was not at all reliable and accordingly dismissed the applications.
5. Heard learned counsel for the petitioner/plaintiff and for the respondents/defendants in all the three cases. Perused the material placed on record. The detailed submissions have been made by both sides, which are more or less on pleaded lines. Therefore, it may not be necessary for this Court to refer in detail such submissions. However, the submissions so made have received due consideration of the Court. Page 5 of 12
AVRJ CRP Nos.3100, 3107 & 3154 of 2014
6. For the sake of convenience, the parties are hereinafter referred to as plaintiff and defendants as arrayed in the original suit.
7. The learned counsel for the petitioners seeks to submit that valuable rights of the plaintiffs are involved and that there were latches on the part of the junior counsel who was attached to the senior counsel's office. The petitioners are able to explain the delay with sufficient cause and that to condone the delay it is required whether the party is able to explain the delay with sufficient cause, length of delay is not relevant and relied upon the principles laid by the Hon'ble Supreme Court of India in State of Nagaland v. Lipok Ao and others1.
8. Per contra, the learned counsel for the respondents /defendants seeks to submit that the delay is not properly explained. The petitioners are trying to throw the blame on the junior counsel at one point of time and again stating that stay was granted and pending in a transfer application, which is not reliable, different stands are 1 (2005) 3 SCC 752 Page 6 of 12 AVRJ CRP Nos.3100, 3107 & 3154 of 2014 taken by the plaintiffs and that the mere fact that the plaintiffs have a strong case on merits is not a ground for condoning the delay and relied on the principles laid by the Hon'ble Supreme Court in State of Gujarat v. Sayed Mohd. Baquir El. Edross2.
9. I have given my thoughtful consideration to the principles laid in the above decisions.
10. All the above original suits were filed by the plaintiffs for recovery of suit claims against the sole defendant. Undisputedly, during pendency of the suits, the sole defendant died. The said fact was also informed to the Court by the learned counsel, who filed a Memo on 11.06.2008 stating that the sole defendant died on 05.05.2008, and the said memo appears to have been received by the junior counsel on 13.06.2008. It appears, there are latches on the part of the plaintiffs in bringing the legal representatives of the deceased-defendant on to record. But, the defendants have tried to explain stating that copy of Memo was received by Sri Nagabushanam, 2 (1981) 4 SCC 1 Page 7 of 12 AVRJ CRP Nos.3100, 3107 & 3154 of 2014 junior counsel attached to the senior counsel's office and thereafter he stopped attending the court.
11. For consideration of Section 5 of Limitation Act the expression "sufficient cause" should receive a liberal construction, so as to advance the cause of substantial justice when no negligence or inaction or want of bona fides is imputable to a party. There cannot be any straitjacket formula for accepting or rejecting the explanation furnished for the delay caused in taking steps. But, one thing is clear that Courts should not proceed with the tendency of finding fault with the cause shown and reject the application by a slipshod order. Acceptance of explanation furnished should be the rule and refusal an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party (Ram Nath Sao alias Ram Nath Sahu and others v. Gobardhan Sao and others3).
12. In State of Nagaland's case (1st supra) relied by the learned counsel for the petitioners, the Hon'ble Supreme 3 AIR 2002 SC 1201 Page 8 of 12 AVRJ CRP Nos.3100, 3107 & 3154 of 2014 Court held that length of delay is irrelevant. Proof by sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the Court and that the approach of Court should be for advancing substantial cause of justice instead of relying on technical approach while considering the application under Section 5 of Limitation. Thus, proof by sufficient cause is a condition precedent for exercise of extraordinary discretion vested in the court and what counts is not the length of delay, but the sufficiency of cause and shortness of the delay may be one of the circumstances to be taken into account in exercising the discretion. What constitutes sufficient cause may depend on the facts and circumstances of each case and there cannot be any hard and fast rule for the same.
13. Reverting back to the facts of the present case, all the three suits were filed for recovery of money. When the plaintiffs were having no means, they have also obtained legal aid from the Legal Services Authority obtained a certificate, dispensing with payment of court fee for the time being and it appears stay was also granted in one Page 9 of 12 AVRJ CRP Nos.3100, 3107 & 3154 of 2014 matter. In such circumstances, as the valuable rights of the parties are involved, the Court should have decided the matter, considering the explanation offered whether it is sufficient to condone the delay, but the trial Court appears to have adopted a pedantic and technical approach.
14. The Hon'ble Supreme Court in Sugandhi (dead) by LRs and another v. P. Rajkumar represented by his Power Agent Imam Oli4 held that procedural and technical hurdles shall not be allowed to come in the away of court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon the procedural and technical violations.
15. In Sital Prasad Saxena v. Union of India5, it was observed by the Hon'ble Supreme Court that rules of procedure under Order-22 Rule-3 CPC are designed to advance justice and should be so interpreted not to make them penal statues for punishing the erring parties. On 4 (2020) 10 SCC 706 5 (1985) 1 SCC 163 Page 10 of 12 AVRJ CRP Nos.3100, 3107 & 3154 of 2014 sufficient cause, the delay in bringing the legal representatives of the deceased party on record should be condoned, procedure is only meant to facilitate the administration of justice and not to defeat the same.
16. I have also perused the principles laid by the Hon'ble Supreme Court in State of Gujarat's case (2nd supra) relied upon by the learned counsel for the defendants wherein no steps were taken to bring the legal representatives of the deceased /respondent/defendant on to record, though the respondent died on 10.12.1978 till 29.08.1979 and affidavit was filed with false averments. Accordingly, the Hon'ble Apex Court held that no cause is shown for condoning the delay to set aside the abatement and the mere fact that the party has a strong case on merits is not a ground to condone the delay.
17. On a careful perusal of the principles laid in the above decisions, I am of the considered opinion that on facts the petitioners are able to explain the delay with sufficient cause and that the petitioners being illiterate persons could not approach their counsel, the learned Page 11 of 12 AVRJ CRP Nos.3100, 3107 & 3154 of 2014 junior counsel who received information failed to place the same within the file, thereby there was delay and for the first time it was noticed when the matter was posted for evidence of the plaintiffs.
20. In such facts and circumstances relying on the principles laid by the Hon'ble Supreme Court in the above decisions, I hold that the plaintiffs are able to explain that they were not aware of the death of defendant. If the delay is condoned, abatement is set aside and the legal representatives of the deceased defendant are brought on record, no prejudice would cause to the defendant or his legal representatives as the matter be decided on merits. Since acceptance of explanation furnished is the rule and refusal is an exception and Section 5 of Limitation Act should receive a liberal construction for advancement of cause of substantial justice, I am inclined to accept the explanation furnished by the petitioners in all the three applications.
21. Therefore, for the reasons stated above, all the Civil Revision Petitions are allowed by setting aside the Page 12 of 12 AVRJ CRP Nos.3100, 3107 & 3154 of 2014 impugned orders dated 05.06.2014 in IA No.707 of 2013 in OS No.408 of 2010, in IA No.4222 of 2009 in OS No.159 of 2008 and in IA No.709 of 2013 in OS No.620 of 2011 and the delay of 1713 days, 469 days and 1713 days in filing petitions to bring the legal representatives of the deceased defendant is hereby condoned respectively. Consequently, the above IAs are allowed. The trial Court shall consider the abatement application and LR applications to be filed by the plaintiffs and to proceed in accordance with the law. However, there shall be no order as to costs.
22. As a sequel, interlocutory applications, if any pending, shall stand closed.
_________________________________ A. VENKATESHWARA REDDY, J.
Date: 24.03.2022 Isn