Andhra HC (Pre-Telangana)
Challagulla Ratna Manikyam vs Boppana Seetharama Raju on 9 July, 2014
Author: C.V.Nagarjuna Reddy
Bench: C.V.Nagarjuna Reddy
THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY
AS(SR) No.13441 of 2012
09-07-2014
Challagulla Ratna ManikyamPetitioner
Boppana Seetharama Raju Respondents
^Counsel for the Petitioner: Sri R.Prasad
!Counsel for the respondent: Sri M.V.Subba Reddy
<Gist:
>Head note:
? Cases referred:
1. AIR 2002 SC 1201
2. 2007 (4) ALD 423
3. 2009 (3) ALT 637 (DB)
THE HONBLE SRI JUSTICE C.V.NAGARJUNA REDDY
A.S.M.P.No.933 of 2014
The Court made the following:
JUDGMENT:
A.S.M.P.No.933 of 2014 is filed for condonation of delay of 1315 days in filing appeal against the judgment and decree, dated 09.02.2007, in O.S.No.532 of 2005, on the file of the learned V Additional Senior Civil Judge (FTC), Vijayawada.
I have heard Sri R.Prasad, learned counsel for the applicant, and Sri M.V.Subba Reddy, learned counsel for the respondent.
The respondent filed the above-mentioned suit against the applicant for recovery of Rs.5,00,000/- based on a promissory note, dated 12.11.2002. The applicant filed written statement denying her liability. The lower Court framed issues and recorded the evidence let-in by the respondent. When the suit was posted for cross- examination of the respondents witnesses on 05.01.2007, the learned counsel for the applicant did not cross-examine the witnesses due to absence of instructions from the applicant. In view of the same, the evidence was closed after setting the applicant ex parte, and an ex parte decree was accordingly passed on 09.12.2008.
The applicant filed I.A.No.235 of 2008 for condonation of delay of 488 days in filing an application to set aside the ex parte decree. The said application was dismissed by the trial Court by order, dated 08.10.2010. Feeling aggrieved by the said order, the applicant filed C.R.P.No.4857 of 2010 before this Court. This Court by order, dated 21.01.2011, dismissed the said CRP. SLP (Civil) No.11688 of 2011 filed by the applicant against the said order was dismissed by the Supreme Court by order, dated 22.07.2011. Thereafter, the applicant filed an appeal before this Court questioning the ex parte decree. Along with the said appeal, the applicant filed the present application for condonation of delay.
In her application, the applicant has stated that as she was pursuing her application for condonation of delay in filing the application for setting aside the ex parte decree, the delay of 1315 days in filing the present appeal occurred.
Sri R.Prasad, learned counsel for the applicant, submitted that as proper opportunity was not given to his client before passing the ex parte decree, she deserves to be shown a lenient view by condoning the delay and an opportunity to contest the suit on merits. In support of his submission, he placed reliance on the judgment of the Supreme Court in Ram Nath Sao alias Ram Nath Sahu and others v. Gobardhan Sao and others and the judgment of this Court Guanaganti Bala Krishnamma v. K.Aadi Seshaiah and another .
Sri M.V.Subba Reddy, learned counsel for the respondent, submitted that the applicant having failed to convince this Court to condone the delay of 488 days, she is not entitled to seek condonation of larger delay. He further submitted that the whole dispute has become stale having regard to the fact that the decree is executed and the property of the applicant was sold in execution for realisation of the decretal amount.
It needs to be noted that the delay of 488 days which this Court declined to condone is part of delay of 1315 days. In C.R.P.No.4847 of 2010, this Court unequivocally rejected the applicants plea for condoning the delay of 488 days in filing the application for setting aside the ex parte decree by refusing to accept the plea that her alleged ill-health prevented her from filing the application for setting aside the ex parte decree in time. As noted above, the Supreme Court declined to interfere with the said order.
Having thus failed in her attempt to get the delay condoned in filing an application for setting aside the ex parte decree, it is inconceivable that the applicant can succeed in convincing this Court to condone the same length of delay in the context of filing an appeal. No doubt, an appeal under Section 96 CPC is a statutory right. However, that right is also subject to law of limitation. In considering an application for condonation of delay, same considerations which weigh in an application filed for setting aside the ex parte decree would equally weigh in consideration of an application filed for condonation of delay in filing an appeal under Section 96 CPC, for, the requirement of reasonable cause is common in both the situations. If the present application of the applicant is allowed, that would amount to ignoring the findings of this Court in C.R.P.No.4847 of 2010.
In State of Andhra Pradesh, rep.by its Secretary to Government, Roads & Buildings Dept., and others v. A.Murali Madhava Rao and others , speaking for the Division Bench, I had an occasion to consider the scope of Section 5 of the Limitation Act, 1963. On a review of case law, the Division Bench held as under:
In Vedabai Alias Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil and others [(2001) 9 SCC 106] and State of Nagaland v. Lipok Ao and others [2005 (3) SCJ 558] the Apex Court made a delicate balance of the two extreme views, namely, strict approach and a too liberal attitude in considering the applications for condonation of delay. In the first mentioned case, it was held that a distinction must be made between the case where the delay is inordinate and a case where the delay is of a few days and that in the former case the consideration of prejudice to the other side is a relevant factor so that the case calls for a more cautious approach, but in the latter case, no such consideration may arise and the same deserves a liberal approach. The Supreme Court further held that while no hard and fast rule can be laid down, the Courts should exercise the discretion on the facts of each case keeping in mind that in construing the expression sufficient cause, the principle of advancing substantial justice is of prime importance. The Supreme Court further observed that in exercising their discretion, the Courts should adopt a pragmatic approach.
The Division Bench further held:
The intendment of law in prescribing limitation is to see that persons are not vexed with the litigation for unduly long periods and their legitimate expectation of receiving the fruits of success in litigation is not defeated after a certain period by dragging him to a further round of litigation.
The parameters indicated in the above re-produced paras squarely apply to this case, for, by seeking condonation of huge delay of 1315 days, the applicant is seeking to revive the stale claim. Undisputedly, the decree was executed and the petitioners property was sold. Condonation of delay and restoration of the suit would unsettle the things which have already been settled. Purporting to make a lenient approach, this Court cannot allow such a result to ensue.
The judgments in Ram Nath Sao and Guanaganti Bala Krishnamma (1 and 2 supra) do not in any manner advance the cause of the applicant as they have only reiterated the settled legal position that there can be no straight jacket formula in considering an application for condonation of delay and that the Courts have to keep in view the facts and circumstances of each case while dealing with the petitions for condonation of delay. Applying these parameters, this Court feels that the facts and circumstances of this case do not call for condonation of huge delay.
For the above-mentioned reasons, the application fails and the same is accordingly dismissed. As a sequel, AS(SR) No.13441 of 2012 stands rejected.
C.V.NAGARJUNA REDDY, J 09th July, 2014