Andhra HC (Pre-Telangana)
M. Shyamala vs District Panchayat Officer And Anr. on 28 August, 2006
Equivalent citations: 2006(6)ALD240
ORDER V.V.S. Rao, J.
1. The petitioner herein was elected as Member of Ward No. 5 of Dammaiguda Village of Keesara Mandal in Ranga Reddy District. The second respondent, who also contested the election and lost, filed an application before the first respondent alleging that the petitioner incurred disqualification under Section 19(3) of the Andhra Pradesh Panchayat Raj Act, 1994 (for short 'the Act'), on the ground that she was having three children. Therefore, the first respondent issued orders on 22-8-2003 disqualifying her under Section 19(3) of the Act. Aggrieved by the same, the petitioner filed O.P. No. 513 of 2003 on the file of the Court of the Principal District Judge, Ranga Reddy District. The same was coming up for enquiry. On 1-7-2004, the said O.P was dismissed as the Counsel for the petitioner was absent when the case was called. Therefore, the petitioner filed an application under Order IX Rule 9 of the Code of Civil Procedure, 1908 (CPC), for restoration of original petition. There was a delay, and therefore, she also tiled I.A. No. 2716 of 2004 under Section 5 of the Limitation Act, 1963, for Condonation of delay of 71 days in filing the application under Order IX Rule 9 of CPC. By impugned order dated 10-2-2006, the same was dismissed. This order is the subject-matter of this civil revision petition filed under Section 115 of CPC.
2. The learned Counsel for the petitioner contends that the delay on the part of the petitioner in filing the application to set aside the order dismissing the O.P. for default was neither wilful nor wanton and the Court ought to have taken a liberal view in entertaining the application, being I.A. No. 2716 of 2006. He placed reliance on the decisions of the Supreme Court in Collector, Land Acquisition, Anantnag v. Katiji AIR 1987 SC 1353, G. Ramegowda v. Special Land Acquisition Officer and the decision of this Court in Movva Anjamma v. Abhineni Anasuya , in support of the contention that when the questions of substantial justice are involved, the cause cannot be defeated by delay. Per contra, the learned Counsel for the second respondent submits that the petitioner did not show any sufficient cause in her application accompanying I.A. No. 2716 of 2004, and therefore, the impugned order is justified.
3. The petitioner made the following allegations in her affidavit filed before the lower Court along with I.A. No. 2716 of 2004.
I submit that 1 filed the above O.P. against the Respondent to stay the impugned orders passed by the Respondent in Proceedings No. E/206/2003 dated 22-8-2003 under Section 19(3) of the A.P. Panchayat Raj Act, 1994. The said O.P. was posted to 1-7-2004, on that myself and my advocate unable to appear before this Court, and the Hon'ble Court called the case and passed the dismissal order for non-representation, my advocate on record is engaged in another Court as such he could not represent the same at the time of calling the case. The non-representation on the said date is neither wilful nor wanton due to the said reasons only.
4. By no stretch of imagination, the above allegations can be treated as sufficient cause for the purpose of Section 5 of the Limitation Act. Except alleging that she or her Advocate was unable to appear as her Counsel was engaged in another Court, no specific reasons were given with details. Can the Court condone the delay in exercising its powers under Section 5 of the Limitation Act on which vague allegations are made ? The answer should be negative. The Court should not lose sight of the fact that even under exparte orders of dismissal as against one party, valuable rights are accrued to the other party/opposite party and in some instances by reason of the valuable rights socio-economic positions are altered. If the delay in seeking redressal before the Court is not claimed within the period of limitation, the Court should be cautious in dealing with such applications though the cause cannot be defeated on technicalities. In State of Andhra Pradesh v. Savanna , a Division Bench of this Court reviewed the entire case law after referring to N. Balakrishnan v. M. Krishnamurthy , and other relevant precedents and summarized the principles as under:
(1) The expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice.
(2) 'Sufficient cause' should be adjudged on considerations of pragmatism and justice oriented approach rather than technical insistence of explaining every day's delay.
(3) (a) Generally, delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay.
(b) In every case of delay, there can be some lapses 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 not putforth as part of a dilatory strategy, the Court must show utmost consideration of the suitor.
(4) The length of delay is no matter. The acceptability of the explanation is the only criterion. Sometimes, even short delay may not be condoned for want of acceptable explanation whereas in certain other cases, the delay of very long range can be condoned if the explanation is satisfactory.
(5) Limitation cannot be extended merely on equitable grounds.
5. In Pushpagiri Mutt v. Ch. Erikala Reddy , relying on the decision of the Supreme Court in N. Balakrishnan v. M. Krishnamurthy (supra), 1 considered the test, which would guide the Court while exercising jurisdiction under Section 5 of Limitation Act. If the delay is condoned by the trial Court, ordinarily revisional Court may not interfere with such orders condoning the delay. If the lower Court declines to condone the delay on the ground that sufficient cause was not shown, the revisional Court may ignore the order of the trial Court and consider the grounds in support of sufficient cause for condonation of delay. In N. Balakrishnan v. M. Krishnamurthy (supra), it was held:
Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned, as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the lower Court, (emphasis supplied)
6. Applying the above test, this Court has considered again the question whether the petitioner has shown any sufficient cause for condonation of delay of 71 days. As noticed from her affidavit in the lower Court, there were neither proper pleadings nor proof regarding sufficient cause before the lower Court. Therefore, the trial Court was justified in rejecting the application made by the petitioner.
7. The civil revision petition is devoid of any merit and is accordingly dismissed. No costs.