Telangana High Court
Gudu Saheb S/O Ashin Saheb vs Shaik Khasim Saheb S/O Hussain on 4 February, 2020
Author: Shameem Akther
Bench: Shameem Akther
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
Civil Revision Petition No.5623 of 2012
ORDER:
This Civil Revision Petition, under Section 115 of the Code of Civil Procedure, 1908, is filed by the petitioners/defendants, challenging the order, dated 26.09.2012, passed in I.A.No.1166 of 2011 in O.S.No.72 of 2009, by the Senior Civil Judge, Gadwal, whereby, the petition filed by the petitioners/defendants, under Section 5 of the Limitation Act, 1963, to condone the delay of 547 days in filing the petition to set aside the ex parte decree, dated 05.02.2010, passed in the subject suit in O.S.No.72 of 2009, was dismissed.
2. Heard the learned counsel for both the sides and perused the record.
3. The learned counsel for the petitioners/defendants would contend that the petitioners/defendants have constructed their houses in the suit schedule land and are residing therein. There were compromise talks in between the petitioners/defendants and the respondents/plaintiffs for a considerable period. Therefore, the petitioners/defendants did not pursue the subject suit in O.S.No.72 of 2009 and the suit was decreed ex parte, vide order, dated 05.02.2010. The Court below, while dealing with the subject Interlocutory Application, had gone into the merits of the subject suit with regard to the ownership over the suit schedule land. It ought not have done so. If the delay of 547 days in filing the petition to set aside the ex parte decree, dated 05.02.2010, is not 2 condoned, the petitioners/defendants would be put to irreparable loss and ultimately prayed to set aside the order under challenge and allow the subject interlocutory application by condoning the delay of 547 days in filing the petition to set aside the ex parte decree, dated 05.02.2010.
4. On the other hand, the learned counsel for the respondents/plaintiffs would contend that in fact, there were no compromise talks in between the parties to the litigation at any point of time. Summons were served on the petitioners/ defendants in the subject suit. However, they remained ex parte. Thereafter, the Court below, after recording evidence and marking the documents, was pleased to decree the subject suit, which was filed for recovery of possession as well as mandatory injunction. The Court below, while dealing with the subject matter of the subject interlocutory application, had elaborately dealt with the contentions raised and answered the same against the petitioners/defendants. There is no legal infirmity in the order under challenge and ultimately prayed to sustain the impugned order and dismiss the Civil Revision Petition. In support of his contentions, the learned counsel had relied on a decision of the erstwhile High Court of Andhra Pradesh in Boddupally China Venkanna Vs. Edulla Narayana Reddy1 .
5. In view of the above rival contentions, the point that arises for determination in this revision is as follows:
"Whether the delay of 547 days occurred in filing the petition to set aside the ex parte decree, 1 Laws (APH) 2002 6 88 = 2002 (5) ALD 96 3 dated 05.02.2010, can be condoned and consequently, the impugned order is liable to be set aside?"
6. There is no dispute with regard to the receipt of summons by the petitioners/defendants in the subject suit. Though the petitioners/defendants have contended that there were compromise talks in between the parties to the litigation, neither a scrap of paper is filed nor any evidence was adduced to show that the petitioners/defendants were misled by the respondents/plaintiffs and the respondents/plaintiffs, by playing fraud, obtained ex parte decree in the subject suit. In the course of appreciation of facts and circumstances of the case, the Court below made an observation that no single document was filed on behalf of the petitioners/defendants to show their ownership over the suit schedule land. The Court below had elaborately dealt with the submissions made on behalf of the petitioners/defendants and held that no sufficient cause is shown to condone the delay of 547 days in filing a petition to set aside the ex parte decree, dated 05.02.2010. The Court below had also made a categorical observation that had there been compromise talks as contended by the petitioners/defendants, the petitioners/defendants ought to have intimated the same to the Court or the matter could have been referred to Lok Adalat for settlement of the dispute amicably. Admittedly, an application to set aside the ex parte decree, dated 05.02.2010, along with the subject interlocutory application to condone the delay of 547 days in filing the said petition were filed after Warrant of delivery of possession of the suit schedule land was issued by the Court below.
4
7. Section 5 of the Limitation Act, 1963, reads as follows:
5 Extension of prescribed period in certain cases:
Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.-- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
8. It is settled law that a person seeking condonation of delay has to explain the delay on day to day basis. In Boddupally China Venkanna's cited supra, the defendants therein filed an application to condone the delay of 331 days in filing the petition under Order IX Rule 13 of CPC on the ground that there was a compromise before the village elders regarding withdrawal of the suit by the plaintiff therein. The said application was dismissed by the trial Court. In a revision filed by the defendants therein before this Court under Section 115 of CPC, this Court confirmed the order of the trial Court and dismissed the revision holding that when the defendants therein stated in the affidavit that the plaintiff compromised before the village elders to withdraw the suit and settle the matter, nothing prevented them from adducing any evidence in that behalf. In the instant case, there is no iota of evidence to substantiate the affidavit averments, particularly, with regard to the compromise talks said to have been taken place in between the parties to the subject interlocutory application. It is evident from the record that a false ground is set up to condone the delay of 547 days in filing the petition to set aside the ex parte 5 decree, dated 05.02.2010. Absolutely, there is no sufficient cause to condone the delay as sought for.
9. The revisional jurisdiction of the High Court under Section 115 of CPC is limited. Under the revisional powers of the High Court under Section 115 of CPC, the High Court may call for the record of any case, which has been decided by any Court subordinate to it, if such subordinate Court appears to have exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity, and may make such order in the case, as it thinks fit. In the instant case, neither of the above three essential ingredients were flouted by the Court below. There is no legal infirmity in the order under challenge. The Civil Revision Petition is devoid of merit and is liable to be dismissed.
10. In the result, the Civil Revision Petition is dismissed. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this CRP, shall stand closed.
______________________ Dr. SHAMEEM AKTHER, J 04th February, 2020 Bvv