Andhra Pradesh High Court - Amravati
Vanteddula Vanna Reddy vs K. Kamakshamma on 30 July, 2021
Author: M.Venkata Ramana
Bench: M.Venkata Ramana
HON'BLE SRI JUSTICE M.VENKATA RAMANA
I.A.NO.1 of 2019 in SECOND APPEAL No.455 of 2019
ORDER:
The petitioner as the appellant has preferred S.A.No.455 of 2019 against the decree and judgment in A.S.No.81 of 2011 on the file of the Court of the learned VIII Additional District Judge, Anantapur, dated 22.08.2017. It was preferred in turn against the decree and judgment in O.S.No.119 of 2017 on the file of the Court of the learned Principal Senior Civil Judge, Anantapur.
2. The petitioner was the defendant in the suit. The respondents were the plaintiffs. The suit was laid to declare the right of the respondents and title to the plaint schedule property and for grant of consequential permanent injunction in their favour and against the appellant herein restraining him from interfering with their peaceful possession and enjoyment of the same.
3. The property in dispute is a dry land of Ac.0-70 cents out of Ac.1-75 cents in S.No.121-1 at Uravakonda of Anantapur District.
4. There is a delay of 576 days in presenting the second appeal.
5. The reason assigned by the petitioner to explain this delay is that he was suffering from diabetes and high blood pressure. He further stated that due to financial crisis, which he is facing, he could not present the appeal within time. He further claimed that he has a very good case on merits and to succeed in the second appeal. While canvassing against the nature of the decree and judgment of the appellate Court that confirmed the decree and judgment of the trial Court, the petitioner contended that if the delay is not condoned and an opportunity is not MVR,J I.A.No.1 of 2019 in S.A.No.455 of 2019 2 given to him to present the second appeal, he would suffer irreparable loss and hardship.
6. On behalf of the respondents, a counter-affidavit is filed denying the claim of the petitioner on merits with reference to the circumstances leading to presenting the second appeal after dismissal of the first appeal. The respondents contended that there is no explanation offered by the petitioner to condone such delay of 576 days nor any substantiating cause therefor has been shown. It is the specific contention of the respondent that the petition has been presented by the petitioner in a lackadaisical manner without offering cogent reasons and the grounds alleged by him are vague. It is also stated that the ailments suffered to by the petitioner are co-morbidities which are generally present in people aged about 45 years. It is also stated that this reason is not substantiated by any medical record. It is further contended by the respondents that on account of this delay, a substantial right is accrued to the respondents, which cannot be disturbed upon condoning the delay, since the application presented lacks bona fides. Contending that the petitioner has no grounds to succeed nor merit in his claim in this second appeal, the respondents requested to dismiss this petition.
7. Heard Sri Manda Adam, learned counsel for the petitioner, and Sri Challa Gunaranjan, learned counsel for the respondents.
8. Now, the point for determination is-"Whether the petitioner has made out sufficient cause explaining the delay of 576 days in presenting the second appeal?"
MVR,J I.A.No.1 of 2019 in S.A.No.455 of 2019 3 POINT:
9. The dispute is in relation to immovable property in a town known as Uravakonda in Anantapur District. The parties pursued their remedies from trial Court to the 1st appellate Court and now it has reached this Court.
10. The petitioner has to explain the reasons for delay in presenting the second appeal, making out substantial grounds and it is also for him to establish that the reasons so set out are not suffering from want of bona fides. Due diligence on the part of the petitioner is another requirement in this process.
11. According to the petitioner, since he is suffering from diabetes and hyper tension, he could not present the appeal in time. Another ground urged by him is of his financial difficulties.
12. The objection of the respondents is that the ground based on health condition of the petitioner is not substantiated by means of medical record.
13. Had the petitioner produced medical record to support his version i.e. of his suffering from diabetes and hyper tension, it would have offered any amount of assistance to his contention. However, he has chosen to affirm in his affidavit these factors that disabled him to present the second appeal within time. Had the medical record is produced, it would have offered only support to such version of the petitioner. Therefore, the prime requirement is to consider is whether the averments so set out offer reason to explain the delay.
MVR,J I.A.No.1 of 2019 in S.A.No.455 of 2019 4
14. A court is not expected to be pedantic in its approach when a party intends to pursue his remedies which are legally available.
15. On behalf of the respondents, S.R.Vediappan and others v. S.P.Ramalingam and others1 is relied on in this context to support their contention. A learned single judge of Madras High Court while referring to the facts and circumstances of the case where there is a delay of 263 days in filing appeal in terms of Order-41, Rule-3A CPC, referred to judgments of Hon'ble Supreme Court which in turn were referred to Sundar Gnanaolivu v. Rajendran Gnanavolivu2. They are "(1) In N. Balakrishnan versus M. Krishnamurthy (1998 (2) CTC
533), the position has been set out as under in para 14:
14. It must be remembered that 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 put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. 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....
(2) In M.K. Prasad versus P. Arumugam (2001(6) SCC 176), it has been held as under in para 9.
9. Again in State of W.B. v. Administrator, Howrah Municipality and G. Ramegowda Major v. Special Land Acquisition Officer this Court observed that the expression "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fides is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant, in the absence of anything showing mala fide or deliberate delay as a dilatory tactic, the court should normally condone the delay.... (3) In Ram Nath Sao @ Ram Sahu & Others versus Gobardhan Sap & Others (2002(3) SCC 195 : 2002-3-L.W. 417), the position has been succinctly set out in para 12 which reads as under: 1
. 2020 SCC OnLine Mad 423 2 .2003 SCC OnLine Mad 32 MVR,J I.A.No.1 of 2019 in S.A.No.455 of 2019 5
12. ...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. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner...."
16. Another ruling relied on for the respondents is a judgment of Bombay High Court in Vithal vs. Akrambee3. Further reliance is placed for the respondents in Govindu Vidyulatha vs. Movva Suri Babu4 in this respect, in which the decision of Hon'ble Supreme Court, Lanka Venkateswarlu vs. State of A.P.5 is referred. Another unreported order in I.A.No.2 of 2019 in A.S.No.414 of 2019 of one of the learned Judges of this Court dated 14.10.2020 is also relied on for the respondents.
17. A careful consideration of all these rulings indicated that it is in the discretion of the Court in the given facts and circumstances to accept the explanation or reason relating to delay. It is an unbridled and unlimited power, yet, circumscribed by certain limitations. Particularly, when a party approaches a Court in a casual manner without exercising due diligence, the Court should be slow in accepting his version to condone the delay.
18. Particular facts in this case pointed out not only the health condition of the petitioner but also his financial difficulties. The financial difficulties did have a great role and significance in pursuing the remedies particularly, when a party intends to prefer an appeal to High Court. It cannot be brushed aside on any ground including want of details. When 3 . 2014 SCC OnLine Bom 802 4 . 2019(2) ALT 185 5 . (2011) 4 SCC 363 MVR,J I.A.No.1 of 2019 in S.A.No.455 of 2019 6 the petitioner has sworn as to such facts in his affidavit explaining the reasons for delay, upon consideration of the principles set out in all the above rulings in application of either Section 5 of the Limitation Act or Order-41, Rule-3A CPC, the reasons assigned by the petitioner need consideration.
19. By condoning delay, at best the petitioner is given an opportunity to pursue his remedy. At the same time, the respondents will have opportunity to contest the matter. It is always desirable for the parties to invite a decision on merits than relying on technicalities. The delay as such in this case is explained by the petitioner. The approach of the petitioner did not suffer for want of bona fides and the reasons assigned by him to explain this delay, are not an outcome of want of due diligence nor it has been a casual approach.
20. Therefore, for these reasons, delay of 576 days in presenting the second appeal has to be condoned allowing this petition.
21. In the result, this petition is allowed condoning the delay of 576 days in filing the Second Appeal. No costs.
________________________ JUSTICE M.VENKATA RAMANA Dt: 30.07.2021 RR