Andhra Pradesh High Court - Amravati
Parvathaneni Tandava Krishna Died vs Sri Parvathaneni Dharma Cheruvu, on 19 August, 2025
APHC010876722017
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3506]
(Special Original Jurisdiction)
TUESDAY,THE NINETEENTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
CIVIL MISCELLANEOUS APPEAL NO: 1207/2017
Between:
1. PARVATHANENI TANDAVA KRISHNA (DIED), PER LR PARVATHA
NENI BABY SAROJINI, W /O. LATE PARVATHANENI TANDAVA
KRISHNA, AGED 76 YEARS, OCC: FARMER, EDUPUGALLU
VILLAGE, KANKIPADU MANDAL, KRISHNA DISTRICT, ANDHRA
PRADESH
...APPELLANT
AND
1. SRI PARVATHANENI DHARMA CHERUVU, Edupugallu, Rep. by its
Manager, Edupugallu, Kankipadu Mandal, Krishna District.
...RESPONDENT
Appeal Under Section_____against ordersto set aside the order dated
09-09-2008 passed in OA.No.14 of 2005, on the file of Deputy Commissioner,
Endowment Department, Kakinada, and consequently dismiss the said
0A.Nolkof 2005
IA NO: 1 OF 2017(CMAMP 2149 OF 2017
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
condone the delay of 3245 days in filing the present appeal.
IA NO: 2 OF 2017(CMAMP 2150 OF 2017
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
permit the petitioner herein to come on record being the legal representative
of late P. Tandava Krishna, the appellant herein in the above appeal
IA NO: 3 OF 2017(CMAMP 2151 OF 2017
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
to grant stay of all further proceedings pursuant to the Order dated 09-09-
2008 passed in OA.No.14 of 2005, on the file of Deputy Commissioner,
Endowment Department, Kakinada, pending disposal of the main CMA
IA NO: 1 OF 2018
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
grant stay of auction to be conducted on 17.05.2018 by the respondent herein
in respect of the schedule property of the OA No.14 of 2005 on the file of the
Deputy Commissioner Endowment department kakinada, pending disposal of
the main CMA No.1207 of 2017 and pass
Counsel for the Appellant:
1. GIRI BABU MARTHI
Counsel for the Respondent:
1. PULIPATI RADHIKA
The Court made the following:
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
I.A. No.1/2017 (CMA M.P. No.2149 of 2017)
IN/AND
CIVIL MISCELLANEOUS APPEAL NO:1207/2017
JUDGMENT:
I.A. No.1 of 2017 (CMA M.P. No.2149 of 2017) is filed seeking condonation of delay of 3245 days in filing the present appeal against the order dated 09.09.2008 passed in O.A. No.14 of 2005, on the file of Deputy Commissioner, Endowment Department, Kakinada.
2. Heard Sri Giri Babu Marthi, learned counsel for petitioner and Smt.Pulipati Radhika, learned counsel, appearing for respondent.
3. (a) Based on proposals submitted by Assistant Commissioner, Endowments Department, Vijayawada, that Sri P.Tandava Krishna, to be in occupation of property belonging to Sri Parvathaneni Dharma Cheruvu (Institution), without any authority, the institution has instituted O.A. No.14 of 2005 before Deputy Commissioner, Endowments Department, Kakinada (Tribunal), under Section 83 of The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short, 2 CGR, J CMA. No.1207 of 2017 'the Act'), treating as encroacher. The said O.A. was contested and by order dated 09.09.2008, respondent therein was directed to be vacated by treating him as encroacher. Further, Assistant Commissioner was directed to implement the order by taking recourse to police assistance in terms of Section 84 of the Act.
(b) Said P.Tandava Krishna instituted O.S. No.295 of 2009 on the file of Senior Civil Judge at Vijayawada to declare that defendant Institution has no title to the subject property. In the plaint, it is clearly averred that the Tribunal has passed orders in O.A. No.14 of 2005 declaring him to be encroacher and ordered for eviction by taking police aid within 30 days and in the process, the institution has been declared to be rightful owner of subject property. Later, I.A. No.293 of 2015 was filed by Institution under Order 14 Rule 2(2) CPC to decide the issue as to whether suit is maintainable in view of remedy of appeal provided under Section 84(2) of the Act against the order of eviction, which upon contest came to be allowed by order dated 28.08.2017. After receiving said order, present appeal has been preferred under Section 84(2) of the Act on 15.11.2017, along with present application to condone delay of 3245 days in presenting the appeal. In the affidavit filed 3 CGR, J CMA. No.1207 of 2017 along with I.A. No.1 of 2017, the reasons set out for delay are as under:
"4. I humbly submit that unfortunately on the legal advice I approached civil court erroneously and got filed a suit on the file of II Adl. Senior Civil Judge which was numberd as O.S.295/2009 on 27-02-2009 for the relief of "Holding that the defendant has no title to the Schedule land." against the Tharma Tank rep.by its Manager, Edupugallu (V), Kankipadu (M), Krishna District, in the year 2009. During the pendenc of the said suit my mother died and myself came to record being legal representative c my mother. The matter was dragged on for a period of 8 years and finally the Hon'ble VII Adl. Senior Civil Judge, Vijayawada passed an order in I.A. No.293/2009 in O.S.No.295/2009 on 28-8-2017 rejecting the plaint itself under O (7) R (11) C.P.C being expressly barred U/s151 of the Act. Hence the appellant is filing the prese appeal before this Hon'ble Court."
Based on aforesaid reasoning, the period spent in pursuing the suit is sought to be excluded for the purpose of the limitation.
4. Opposing the I.A., Institution has filed counter inter alia stating that after passing of impugned order by the Tribunal ordering eviction, the appellant consciously instead of preferring appeal filed suit and that too with prayer that to declare Institution is not owner of subject land and did not challenge aforesaid order, 4 CGR, J CMA. No.1207 of 2017 therefore, it cannot be said that the petitioner was diligent enough and pursuing the suit in good faith. Further no justifiable reasons have been pleaded to condone the inordinate delay of 3245 days. The counter further addressed even on merits of the matter stating that the ancestors of petitioner were instrumental in seeking declaration from competent court that the subject lands belong to Endowment, therefore, now as legal heirs, they are precluded from taking in all together contrary stand. Further, after passing of the impugned order, the subject lands have been taken possession and are now leased out to third parties after conducting public action, hence, sought for dismissal of I.A.
5. In line with the pleadings made in I.A. and as well as counter, both counsel for petitioner and respondent advanced their arguments.
6. Perused the record and considered the rival submissions made by both parties.
7. (a) The respondent initially instituted O.A. before the Tribunal under Section 83 of the Act, praying for eviction by treating husband of petitioner as encroacher. The same was contested and ultimately by impugned order, appellant's husband was declared to be encroacher and ordered for eviction. He was directed to 5 CGR, J CMA. No.1207 of 2017 handover possession of the subject property to respondent within 30 days, failing which, the Assistant Commissioner was directed to implement the order by taking recourse to police aid as contemplated under Section 84 of the Act. He chose to file O.S. No.295 of 2009 rather than resorting to prefer appeal under the provisions of the Act. Curiously, the prayer in the suit was one for declaration that Institution is not the owner of subject property and neither any consequential relief was sought for nor order in O.A. was sought to be set aside.
(b) Be that as it may, after death of the plaintiff, appellant herein, being legal heir, got impleaded and pursued the suit. I.A. No.293 of 2009 was filed by Institution to decide the issue as to whether suit is maintainable in view of remedy of appeal provided under Section 84(2) of Act against the order of eviction and the same came to be allowed by order dated 28.08.2017, whereby trial court decided to consider the issue of jurisdiction and maintainable as a preliminary issue before proceeding with merits of the matter. Thereafter, present appeal has been preferred on 15.11.2017. In the process, there is a delay of 3245 days.
8. Learned counsel for petitioner contended that the period from date of institution of suit till the date of rejection is entitled to 6 CGR, J CMA. No.1207 of 2017 be exempted in terms of Section 14 of Limitation Act for the purpose of computing limitation. Further, the period and the delay from the date of rejection of plaint till filing present appeal be condoned under Section 5 of Limitation Act. He has not specifically provided the data when suit came to be instituted, except stating that it was filed in the year 2009. Assuming that it was filed in the year 2009, the period from 2009 till 13.09.2017 is sought to be exempted. First, in order to test whether the petitioner is entitled for consideration of such exemption, it is apt to refer to section 14 of Limitation Act, which reads as under:
"14. Exclusion of time of proceeding bona fide in court without jurisdiction. -- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding 7 CGR, J CMA. No.1207 of 2017 is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.
Explanation.-- For the purposes of this section,-- (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
9. Plain reading of aforesaid section goes to show that in order to claim exclusion of time of proceedings being prosecuted in court without jurisdiction, one has to demonstrate that such proceedings were prosecuted with due diligence and good faith. These two expressions 'due diligence' and 'good faith' came to be considered many a times by various courts.
8
CGR, J CMA. No.1207 of 2017
(i) It is apt to refer to judgment of Hon'ble Apex Court in M.P.Steel Corporation v. Commissioner of Central Excise1, which discussed the phrase 'due diligence' and 'good faith' for the purpose of invocation of Section 14 of the Act. Relevant portion of Paragraphs 10 and 49 of the said judgment reads as under:-
"10. We might also point out that Conditions 1 to 4 mentioned in the Consolidated Engg. case [(2008) 7 SCC 169] have, in fact, been met by the appellant. It is clear that both the prior and subsequent proceedings are civil proceedings prosecuted by the same party. The prior proceeding had been prosecuted with due diligence and in good faith, as has been explained in Consolidated Engg. [(2008) 7 SCC 169] itself. These phrases only mean that the party who invokes Section 14 should not be guilty of negligence, lapse or inaction. Further, there should be no pretended mistake intentionally made with a view to delaying the proceedings or harassing the opposite party.
xxxxxxx
49. ............ the expression "the time during which the plaintiff has been prosecuting with due diligence another civil proceeding" needs to be construed in a manner which advances the object sought to be achieved, thereby advancing the cause of justice."
1 (2015) 7 SCC 58 9 CGR, J CMA. No.1207 of 2017 (emphasis supplied)
(ii) The principles pertaining to applicability of Section 14 of Limitation Act were extensively discussed and summarized by Hon'ble Apex Court in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department and others2, wherein it was observed as follows:
"21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due diligence and in good faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and;
(5) Both the proceedings are in a court."2
(2008) 7 SCC 169 10 CGR, J CMA. No.1207 of 2017
10. In the present case, it is not in dispute that petitioner's mother was very much aware of the eviction order and consequence flowing from that. The plaint clearly discusses about the same and also even an I.A. was filed in the suit seeking for temporary injunction restraining the Institution from interfering with the peaceful possession and enjoyment over subject property. As the same was not decided, even CRP was filed under Article 227 of Constitution of India for expeditious disposal, which came to be disposed of by this Court by order dated 29.07.2011. The pleadings also disclose that initially the trial court has granted interim injunction, the same later has been set aside by appellate court in appeal. Therefore, the narrated events disclose that petitioner was pursuing the proceedings in suit without taking recourse to preferring appeal against the orders of Tribunal. Even thereafter, when Institution in the written statement taken an objection with respect to maintainability of suit, in view of availability of alternative remedy by filing I.A. No.293 of 2015 requested to decide the issue as to whether suit is maintabile in view of remedy of appeal provided under Section 84(2) of the Act against the order of eviction as preliminary issue and the said I.A. came to be allowed by order dated 28.08.2017 and the same issue cannot be once again reagitated in the suit. The petitioner resisted 11 CGR, J CMA. No.1207 of 2017 the said application by filing counter. Therefore, it clearly establishes that petitioner was well legally advised and the reason assigned for seeking exclusion of period in pursuing the suit that she/he was ill advised, therefore, they were pursuing suit on erroneous assumption does not appear to be bonafide. It is well settled that while considering the plea for condonation of delay, the first and foremost duty of the court is to ascertain the bonafides of the explanation offered by party seeking condonation. Except for aforesaid reason, no other reason has been pleaded to condone such huge delay. Even after rejection of plaint on 28.08.2017, petitioner took nearly more than 75 days to file present appeal and delay for the said period is clearly unexplained.
11. The matter requires to be examined from yet another perspective. Petitioner chose to file suit to declare that Institution is not owner of subject property without any consequential relief. Firstly, there is no challenge to the order of Tribunal in the prayer made to gainfully say that the proceedings were instituted in good faith. Secondly, even if the prayer in suit were to be allowed in toto, still the order passed by Tribunal to which they are parties keeps staring, therefore, the entire recourse adopted by petitioner merely 12 CGR, J CMA. No.1207 of 2017 appears to stall or obstruct the consequence flowing from impugned order but not really to contest the same in appeal. Therefore, this Court is of the opinion that the prior proceedings initiated are not in good faith.
12. This Court is conscious of the line of judgments rendered by Hon'ble Apex Court, which enunciated that the purport of Section 14 is to extend the benefit of exclusion of time of proceedings being pursued in a bonafide manner in furtherance of cause of justice rather than aborting the proceedings merely the party was not diligent in pursuing proper remedy in a wrong court, however, it is also required to be seen that such proceedings were pursued with due diligence and good faith. In the present case, petitioner in plaint has extensively referred to the scheme of the Act, therefore, it is difficult to accede that she/he was not properly advised and erroneously preferred to institute suit. Section 84(2) of the Act is very much clear and it leaves no room for ambiguity or doubt for person trying to dispute title of Institution to prefer appeal against the orders of Tribunal passed under Section 83 of the Act. The petitioner also had yet another wake up call when Institution filed I.A. No.293 of 2015 by filing written statement taking an objection with respect to maintainability of suit, in view of availability of 13 CGR, J CMA. No.1207 of 2017 alternative remedy. All these sequences of events go to show that the petitioner was deliberately and intentionally pursuing suit and clearly lacked bonafides and in turn good faith for claiming benefit of Section 14 of the Limitation Act.
13. As observed above, even the period from the date of rejection of plaint till filing of present appeal, the period of delay is not even explained, leave about offering day-to-day explanation. The said period has to be decided from the spectrum of Section 5 of Limitation Act. Unless sufficient cause is shown preventing petitioner from preferring appeal, even the said period of delay cannot be condoned. It is trite law that delay should not be condoned merely as an Act of generosity and that pursuit of substantial justice must not come at cost of causing prejudice to opposing party. The Institution in the present case, having succeeded before Tribunal, was made to contest the suit once again on same set of facts, and despite taking objection on continuation of proceedings in suit, still petitioner rather than backing continued to contest it unsuccessfully. Therefore, petitioner has failed to demonstrate reasonable grounds of delay in pursuing the matter.
14
CGR, J CMA. No.1207 of 2017
14. In view of the above reasoned discussion, this Court is not inclined to exercise the discretionary power of condoning delay either under Section 5 of Limitation Act or exclude the period under Section 14 of the Limitation Act.
15. Accordingly, I.A. No.1 of 2017 (CMA M.P. No.2149 of 2017) stands dismissed. In view of dismissal of I.A. No.1 of 2017 (CMA M.P. No.2149 of 2017), this appeal also stands dismissed. No costs.
As a sequel, miscellaneous petitions, pending consideration, if any, in this case sshall stand closed.
_______________________ CHALLA GUNARANJAN, J 19.08.2025 SS