Telangana High Court
Mohd Iqbal vs Syed Shah Jaffer Hussain on 22 June, 2023
HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU
I.A.NO.1 of 2023
IN/AND
C.C.C.A.NO.24 OF 2023
ORDER :
The defendant No.3 in OS.No.366 of 2006 on the file of III Addl. Chief Judge, City Civil Court, is petitioner in the present Interlocutory Application, which is under Section 5 of Limitation Act. The petitioner being aggrieved by the Judgment and Decree of learned III Addl. Chief Judge, City Civil Court (herein after will be referred as 'trial Court') in OS.No.366 of 2006 preferred appeal under Section 96 of C.P.C. vide C.C.C.A.No.24 of 2023 and as there was delay of 1513 days in filing, he has preferred this petition with a prayer to condone the said delay in preferring the appeal.
2. In support of this petition, the petitioner has filed his affidavit with the following averments.
The petitioner is defendant No.3 in OS.No.366 of 2006 and plaintiff in OS.No.741 of 2009. OS.No.366 of 2006 was filed by respondents No.1 and 2 herein for declaration of title and recovery of possession and injunction, whereas, the petitioner has filed 2 SSRN,J I.A.No.1 of 2023 in/and C.C.C.A.No.24 of 2023 OS.No.741 of 2009 for declaration of his ownership and possession on the same property. The trial Court disposed both the suits under a common Judgment dated 29-10-2018 and decreed OS.No.366 of 2006, consequently, dismissed the suit filed by the petitioner vide OS.No.741 of 2009.
3. The petitioner has filed a review petition in OS.No.366 of 2006 and he has claimed that he could not pursue the review petition due to Covid-19, but subsequently, he took all necessary steps to proceed with the matter. However, during the pendency of the review petition, the Decree holder has filed Execution Petition in spite of the fact that there was a stay against the execution. The petitioner further stated that since the review petition was pending along with the execution petition, he was under the impression that he will succeed in the review petition, but the execution petition filed by the respondent/decree holder was allowed granting possession of the property which was taken away from the petitioner herein.
4. The petitioner has claimed that though the respondent/decree holder has got knowledge about the review petition, he has initiated the execution proceedings and the same was allowed.
3
SSRN,J I.A.No.1 of 2023 in/and C.C.C.A.No.24 of 2023
5. The petitioner has claimed that he was under the impression that the review petition will be allowed but due to COVID pandemic and due to the time consumed by the Court below in the disposal of review petition, he could not file appeal within time. Therefore, the delay in filing the appeal is neither willful nor intentional and petitioner claims that he is having hope that he will succeed in the appeal, thereby, he prayed for condoning the delay in filing the appeal.
6. The respondent/Decree holder opposed the petition. G.P.A. Holder of respondents No.1 and 2 by name Mohammed Raziuddin Ali filed the counter affidavit with the following averments.
7. He has gone through the contents of the affidavit filed in support of the petition and he claims that the present petition is untenable in law and on facts, thereby, it is liable to be dismissed. The respondents have claimed that the petitioner contested the execution petition bearing E.P.No.852/2019 and he made every conceivable attempt to procrastinate the matter which would be evident from the docket proceedings of the Execution Petition. The petitioner at every stage of proceeding was negligent and 4 SSRN,J I.A.No.1 of 2023 in/and C.C.C.A.No.24 of 2023 deployed every conceivable tactic to delay the disposal of Execution Petition.
8. The respondents while placing reliance on a Judgment in 'M/s. Kshitij Infraventures Pvt. Ltd. Vs. Khorshed Shapoor Chenai'1, has claimed that the delay in filing the appeal cannot be condoned. The respondents has extracted the order of the Division Bench in the above referred matter and further contended that the petitioner herein has participated in various proceedings i.e., he has contested the execution proceedings, filed petitions and also a revision vide C.R.P.Nos.8 and 9 of 2022. Therefore, he cannot claim that he could not file appeal due to Covid-19 pandemic.
9. The respondents have stated that the petitioner/appellant actively contested the execution proceedings and other proceedings between the parties. Therefore, the assertion on the face of the record is a blatant falsehood as during the same period, he has filed application before the Executing Court and the present appeal was filed only after the conclusion of execution proceedings and schedule property was alienated in favour of third parties. While relying on a Judgment reported in 1 2022 (1) ALT 533 5 SSRN,J I.A.No.1 of 2023 in/and C.C.C.A.No.24 of 2023 2015 5 ALD 399, the respondents contended that there are no sufficient reasons to condone the delay.
10. The respondents have also claimed that haphazard affidavit which is bereft of any details and which does not disclose any reason, much less sufficient cause for condoning the delay cannot be considered to allow the petition filed by the petitioner. The respondents have claimed that there is no reason much less cogent reasons assigned by the petitioner for seeking condonation of a colossal delay of 1513 days in filing the appeal.
11. The respondents have claimed that there is no sufficient cause to allow the request of the petitioner. In support of the contention, the respondents placed reliance on various Judgments, and they will be discussed in the subsequent paragraphs. In addition to this, the respondents have contended that the petitioner in spite of dismissal of OS.No.741 of 2009 did not file any appeal and the malafide intention/motive of the petitioner/appellant can be clearly visualized by the fact that though a common judgment is passed in two suits, a belated first appeal is filed against Judgment and Decree in OS.No.366 of 2006 and petitioner did not choose to file any appeal against the Judgment and Decree in OS.No.741 of 2009. Therefore, it clearly 6 SSRN,J I.A.No.1 of 2023 in/and C.C.C.A.No.24 of 2023 shows that the petitioner has accepted the Judgment and Decree in OS.No.741 of 2009 and having accepted the said Judgment in OS.No.741 of 2009, wherein, it is held that the petitioner is neither owner nor lawful possessor of the property, in the teeth of findings in OS.No.741 of 2009, the petitioner cannot maintain a single appeal against OS.No.366 of 2006.
12. The respondents have also claimed that after conclusion of the execution proceedings, respondents No.1 and 2 have alienated the subject property in favour of a third party. The petitioner having come to know about the said fact, filed the present appeal with a malafide intention/motive to extract money. Therefore, the delay cannot be condoned and for that proposition, he has relied on the above Judgment in 'M/s. Kshitij Infraventures Pvt. Ltd. Vs. Khorshed Shapoor Chenai' (supra). The respondents have disputed each and every averment of the affidavit and sought for dismissal of the interlocutory application filed by the petitioner for condoning the delay in filing the appeal.
13. Heard both parties.
14. Now the point for consideration is :
7
SSRN,J I.A.No.1 of 2023 in/and C.C.C.A.No.24 of 2023 Whether the petitioner is able to establish sufficient grounds/reasons to condone the inordinate delay of 1513 days in preferring appeal against Judgment in OS.No.366 of 2006?
15. As could be seen from the record, it shows that the petitioner who is appellant in the proposed appeal is the defendant in OS.No.366 of 2006 and plaintiff in OS.No.741 of 2009. OS.No.366 of 2006 was filed by respondents No.1 and 2 for declaration of title, recovery of possession as well as injunction against the petitioner and another. It seems, the trial court passed a Decree in favour of the respondents in OS.No.366 of 2006 and dismissed the suit filed by the petitioner herein vide OS.No.741 of 2009. The petitioner, who wanted to file an appeal against the Judgment and Decree in OS.No.366 of 2006, filed the present interlocutory application under Section 5 of Limitation Act with a prayer to condone the delay of 1513 days in filing the appeal. The petitioner did not explain how he can file an appeal against the Judgment in OS.No.366 of 2006 without filing any appeal against the Judgment and Decree in OS.No.741 of 2009 having accepted the Judgment and Decree in the said suit. The main ground under which the present application is filed is the alleged review petition. The petitioner has claimed that subsequent 8 SSRN,J I.A.No.1 of 2023 in/and C.C.C.A.No.24 of 2023 to the disposal of above referred suits, he has filed a review petition in OS.No.366 of 2006 before the trial Court within time, but he could not pursue the review due to COVID-19 pandemic. The petitioner further stated that subsequently he has taken all the necessary steps to proceed with the matter but during the pendency of the review petition itself, the Decree holder in OS.No.366 of 2006 filed execution proceedings and obtained relief from the Court below.
16. The respondents/plaintiffs have claimed that the contention of the petitioner with regard to COVID pandemic is incorrect on the ground that the petitioner herein has filed number of applications before the Executing Court and filed the present appeal only after the conclusion of execution proceedings. As per the copy of Judgment in OS.No.366 of 2006 and OS.No.741 of 2009, the Court below disposed both the suits by a common Judgment on 29-10-2018. The petitioner did not file the copy of alleged review petition along with the appeal and he did not place any record as to what happened in the said review petition.
17. The petitioner claim with regard to his failure in preferring the appeal within time due to COVID pandemic cannot be considered for the reason that both the suits were disposed in 9 SSRN,J I.A.No.1 of 2023 in/and C.C.C.A.No.24 of 2023 the month of October, 2019, whereas, the COVID pandemic was from March, 2020. The petitioner cannot claim that he was pursuing the review petition till onset of COVID proceedings of pandemic for another reason that he was actively filing interlocutory applications etc. in the execution proceedings initiated by the respondents. The learned counsel for the petitioner while placing reliance on a Judgment between 'M/s. Kshitij Infraventures Pvt. Ltd. Vs. Khorshed Shapoor Chenai'2 (supra), has submitted that such a request cannot be considered if there is suppression of material facts before the Court. He has extracted Para Nos.64 and 65 of the above referred Judgment in the counter affidavit and the learned counsel for the respondents has argued that when the record clearly indicates the active participation of the petitioner herein before the Court below in the execution proceedings, his request for condonation of huge delay of more than 1500 days cannot be considered. He was also argued that when the petitioner failed to explain sufficient cause for the delay, the same cannot be considered and for this proposition, they placed reliance on a Judgment reported in 2015 (5) ALD 399. As rightly claimed by the respondent except saying 2 2022 (1) ALT 533 10 SSRN,J I.A.No.1 of 2023 in/and C.C.C.A.No.24 of 2023 that he was pursuing the review petition before the trial Court, the petitioner could not prove any sufficient reason or show any cause which prevented him from filing an appeal against the Judgment and Decree. Reliance sought to be placed on a Judgment of Hon'ble Supreme Court in 'Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Others'3.
18. In addition to the above grounds, the respondents further contented that the failure of petitioner in filing the petition against the Judgment and Decree in OS.No.741 of 2009 clearly indicates the malafide intention of petitioner and it is only to dodge the proceedings, more particularly, when the Execution Court already sold the property. It is the specific contention of the respondents that after execution proceedings were successfully concluded in their favour, they have alienated the property to a third-party and petitioner having come to know about the said alienation, filed the present appeal with a malafide intention to extract money from the parties. While relying on Para numbers 7 of 37 of Kshitij Infraventures Pvt. Ltd. Vs. Khorshed Shapoor Chenai'4 (supra), the learned counsel for the respondents has 3 (2013) 12 SC Cases 649 4 2022 (1) ALT 533 11 SSRN,J I.A.No.1 of 2023 in/and C.C.C.A.No.24 of 2023 submitted that while exercising the discretion to condone the delay, the Court is required to see whether the delay is satisfactorily explained.
19. The respondents have claimed that there was no such stay in the review petition as claimed by the petitioner and the false ground has been raised in the present interlocutory application. In spite of the said specific contention in the counter affidavit, the petitioner herein did not place any material to substantiate the claim that he has obtained stay in the execution petition. Simply because this petitioner moved a review petition without pursuing the same, he cannot be permitted to file appeal after a considerable period of more than 1500 days more particularly, after the conclusion of execution proceedings and alienation of the property in favour of third parties. The right accrued to the respondents by virtue of the Decree and Execution proceedings cannot be curtailed on the basis of appeal which is filed nearly more than 4 years after the Judgment in the suit.
20. The record further shows that the respondents filed E.P.No.852 of 2019 before the Execution Court, it also appears from the record that the petitioner, who is claiming that he was prevented from pursuing the review petition filed two Civil Revision 12 SSRN,J I.A.No.1 of 2023 in/and C.C.C.A.No.24 of 2023 Petitions before this Court in C.R.P.No.8 of 2022 and C.R.P.No.9 of 2022 questioning the delivery warrant issued by the Execution Court in EP.No.852 of 2019.
21. The respondents have claimed that above referred Civil Revision Petitions were dismissed by this Court on merits by Judgment dated 25-04-2022, and after a period of 7 months since the dismissal of the Civil Revision Petitions, the petitioner belatedly filed CCCA.No.24 of 2023. It also appears from the record that when the petitioner failed to file counter in the execution proceedings and when he tried to adopt delaying practices having obtained several adjournments, the Execution Court issued a warrant of possession on 16-11-2021. The respondents have further averred in the counter that the petitioner herein filed on 17-11-2021 seeking advancement of hearing, recalling the order and stay of the execution. It seems the Execution Court allowed the petitions on condition that the petitioner herein should file counter affidavit in the name execution petition. However, in spite of the said conditional order, the petitioner failed to file counter thereby, right of filing the counter was forfeited and delivery warrant was issued on 23-12-2021.
13
SSRN,J I.A.No.1 of 2023 in/and C.C.C.A.No.24 of 2023
22. The respondents further claimed that when the bailiff approached the schedule premises with execution warrant, the petitioner herein deliberately resisted the execution and locked the premises preventing the bailiff from delivering the property, and it seems the petitioner herein filed counter affidavit before the Execution Court on 23-12-2021 and file EA.No.180 of 2021 for stay. The petition filed by the petitioner herein vide EA.No.180 of 2021 was dismissed thereby, petitioner filed C.R.P.No.8 of 2021 and C.R.P.No.9 of 2021 and this Court after hearing both parties dismissed the Civil Revision Petitions on merits. Therefore, it is quite clear from the above averments that the petitioner was actively pursuing the execution proceedings including the filing of interlocutory applications and Civil Revision petitions thereby, he cannot claim that he was prevented from filing appeal only in view of pending review petition. It seems he has taken this particular stand only to avoid the explanation by taking COVID-19 pandemic as advantage. If really, he was prevented from pursuing the proceedings, he could not have filed the above referred proceedings and when once he has got knowledge of the execution and while filing the revision petitions before the Court, he cannot 14 SSRN,J I.A.No.1 of 2023 in/and C.C.C.A.No.24 of 2023 take the said review petition as a ground for his failure to file appeal against the Judgment.
23. As per the material placed by the respondents along with the counter, it is quite clear that the suits were disposed by the trial Court on 29-10-2018. The time for filing appeal expired on 28-11-2018. The review petition filed by the petitioner vide SR.No.9800 was not pursued by the petitioner. The 90 days period prescribed under Limitation Act to file first appeal expired on 28-01-2019. The petitioners herein filed vakalath before the Execution Court on 31-12-2019. He was actively contesting the execution proceedings, which is evident from various days and details mentioned in the list of evidence filed along with the counter, therefore, the contents of the petitioner that he could not file the appeal only in view of his alleged impression about review petition is nothing but false. Therefore, absolutely there are no grounds to believe the contention of the petitioner and to condone the delay of 1530 days delay in filing the appeal. Thereby, the petition is liable to be dismissed.
24. In the result, the IA.No.1 of 2023 is dismissed. Consequently, CCCA.No.24 of 2023 is also dismissed. 15
SSRN,J I.A.No.1 of 2023 in/and C.C.C.A.No.24 of 2023 Consequently, Miscellaneous applications if any, are closed. No costs.
__________________________ b JUSTICE SAMBASIVA RAO NAIDU Date: 22.06.2023 PLV