Telangana High Court
K.Jagapati Reddy, Mahaboobnagar vs K.Bhaskar Reddy, Mahaboobnagar Dist on 6 June, 2022
Author: Chillakur Sumalatha
Bench: Chillakur Sumalatha
THE HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA
CIVIL REVISION PETITION No.2676 of 2016
ORDER:
Heard learned counsel for the petitioner as well as learned counsel for the respondent. Perused the material available on record.
2. Challenge in this Civil Revision Petition is the order rendered by the Court of Senior Civil Judge, Nagarkurnoool, Mahabubnagar District, in I.A.No.390 of 2014 in O.S.No.119 of 2013, dated 22.12.2014.
3. I.A.No.390 of 2014 was filed by the revision petitioner, who is the defendant to the suit, under Section 5 of the Limitation Act, seeking the Court to condone the delay of 107 days in filing application to set aside the exparte decree dated 17.02.2014 in O.S.No.119 of 2013. The request was dishonoured and the said application was dismissed vide order dated 22.12.2014. Aggrieved by the same, the revision petitioner is before this Court.
4. Arguing at length in respect of the merits of the case, learned counsel for the revision petitioner submits that the suit 2 Dr. CSL,J C.R.P.No.2676 of 2016 was filed by the respondent/plaintiff for specific performance of the contract of sale and on receipt of summons, the revision petitioner appeared before the trial Court and also engaged an Advocate to defend him. But, subsequently, he left to Hyderabad for eking out his livelihood and thereafter he fell ill and, therefore, he could not contact his counsel and file written statement. Learned counsel for the petitioner submits that in the light of non-filing of the written statement, the suit was heard exparte and was decreed on 17.02.2014. On learning about passing of exparte decree, the petitioner filed an application to set aside the said exparte decree and as there was a delay of 107 days in filing the said application, he filed another application under Section 5 of the Limitation Act to condone the said delay. But without condoning the said delay, the application was dismissed vide order dated 22.12.2014. Aggrieved by the said order, the petitioner has approached this Court.
5. Learned counsel for the revision petitioner also states that when sufficient cause is shown, it is incumbent on the part of the Court to condone the delay, but it was not done. The learned counsel further submits that any irregularity in conducting the 3 Dr. CSL,J C.R.P.No.2676 of 2016 case on the part of the Advocate should not affect the interest of the party and, therefore, the delay ought to have been condoned by the trial Court. In this regard, learned counsel for the petitioner relied upon a decision rendered by this Court in a case between MALLARAM SANJEEVA GOUD AND OTHERS v. P. BHIKSHAPATHI AND OTHERS1, wherein the learned Judge at para-18 of the order made the following observations:
"18. It is settled law that parties engage Advocate and rely on the Advocate to take care of their interests. If they are not properly advised by the Advocate and when they immediately approach the Court within the stipulated period of limitation, the Court cannot dismiss the said application on the ground that petitioners should prove willful negligence on the part of their earlier Counsel on record."
Further, making a submission that when sufficient cause is shown, the delay should be condoned, the learned counsel relied upon a decision of the Hon'ble Supreme Court in a case between M.K. PRASAD v. P. ARUMUGAM2, wherein the Hon'ble Apex Court at para-7 of the order held as follows:
"7. In any case in which a decree is passed ex-parte, the defendant can apply to the court by which the decree was passed for an order to set it aside and if he satisfies the court that he was prevented by any sufficient cause 1 2019 (6) ALD 336 (TS) 2 (2001) 6 SCC 176 4 Dr. CSL,J C.R.P.No.2676 of 2016 from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit. Such an application can be filed within 30 days as provided under Article 123 of the Limitation Act. In case of delay, the defendant can avail of the benefit of Section 5 of the Limitation Act and seek its condonation by satisfying the court regarding the existence of circumstances which prevented him from approaching the court within the limitation prescribed by the statute."
6. By relying upon the aforesaid rulings, learned counsel for the revision petitioner made a submission that as sufficient cause was shown for condonation of delay, interlocutory application filed under Section 5 of the Limitation Act ought to have been allowed, but it was not done by the trial Court.
7. Vehemently opposing the submission made, learned counsel for the respondent/plaintiff contended that no proof was filed before the trial Court to show that the revision petitioner left to Hyderabad to eke out his livelihood, fell ill at the said place and, therefore, he could not contact his counsel. The learned counsel also contended that even the date on which the revision petitioner left to Hyderabad, the date on which he fell ill and the period within which he could not contact his counsel are also not mentioned in the affidavit filed in support of the application, and 5 Dr. CSL,J C.R.P.No.2676 of 2016 hence, observing the same, the trial Court dismissed the application. He further contended that when sufficient cause is not shown to the satisfaction of the Court, the Court will not condone the delay and that is done by the trial Court, and hence, the order under challenge needs no interference. The learned counsel also made a submission that after passing of the decree, Execution Petition was filed by the respondent/plaintiff and notice was also sent in the said Execution Petition and thereafter the respondent/plaintiff deposited the balance of sale consideration before the Court, and subsequently, the Court executed the sale deed in favour of the respondent/plaintiff and possession of the property was also delivered to him and, therefore, now if the present Civil Revision Petition is allowed, the respondent/plaintiff would be put to irreparable loss and hardship and the entire exercise made would become futile, and hence, the Civil Revision Petition requires dismissal.
8. Learned counsel for the respondent/plaintiff also brought to the notice of this Court that even this Civil Revision Petition was filed with a delay of 311 days, and thus, it is quite evident that 6 Dr. CSL,J C.R.P.No.2676 of 2016 the revision petitioner was never attentive and vigilant in prosecuting the matter.
9. A perusal of the record reveals justification in the said submission. This Civil Revision Petition was filed with a delay of 311 days and the said delay was condoned vide order in CRP.MP.No.1118 of 2016, dated 07.06.2016. When the delay was condoned, normally, the said delay will not be taken into consideration to decide the Civil Revision Petition on merits. However, in the case on hand, due to the lapse on the part of the revision petitioner in prosecuting the matter diligently, much water has flown and the respondent/plaintiff was put in possession of the property by the Court after executing the sale deed in his favour. Further-more, as rightly put-forth by learned counsel for the respondent, the date on which the revision petitioner left to Hyderabad for his livelihood, the nature of ill- health suffered by him and the time taken for his recovery were not mentioned anywhere in the affidavit filed in support of the interlocutory application to condone the delay. Also, nothing is stated as to what prevented the revision petitioner to contact his counsel atleast over phone and enlighten the position to him, so 7 Dr. CSL,J C.R.P.No.2676 of 2016 that the learned counsel would have taken time for filing written statement. As rightly argued by learned counsel for the revision petitioner, in normal course, the delay of 117 days would have been condoned. However, having regard to the facts and circumstances of the case, more particularly, when the said delay has resulted in substantial progress of Execution Petition and when the respondent is put in possession of the property by executing the sale deed in his favour, now it is not justifiable on the part of this Court to overturn the said possession. Further- more, it is incumbent on the part of a party seeking condonation of delay to satisfy the Court by mentioning the material details and justifying the cause. In the case on hand, only by mentioning that he was not available at his native place, and that he fell ill, the revision petitioner sought for condonation of delay. Neither the date on which he left his native place, the period within which he was not available, the nature and period of ill-health suffered by him etc., which are material particulars to decide whether the cause shown is genuine or not, are not mentioned. Therefore, the trial Court has rightly disallowed the application filed by the 8 Dr. CSL,J C.R.P.No.2676 of 2016 revision petitioner. This Court does not find any infirmity in the order rendered by the trial Court so as to interfere with.
10. With the afore-mentioned findings and observations, this Court considers that the Civil Revision Petition lacks merits and the same is liable to be dismissed.
11. Resultantly, this Civil Revision Petition is dismissed. No order as to costs.
12. As a sequel, miscellaneous petitions pending, if any, shall stand closed.
________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA 06.06.2022.
NOTE : L.R. Copy be marked.
(B/O) Msr 9 Dr. CSL,J C.R.P.No.2676 of 2016 THE HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA CIVIL REVISION PETITION No.2676 of 2016 06.06.2022 (Msr) 10 Dr. CSL,J C.R.P.No.2676 of 2016