Telangana High Court
Yasa , Paindla Venkat Reddy vs Yasa , Paindla Parma Reddy,Y on 6 December, 2023
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Revision Petition No.1204 OF 2020
ORDER:
Aggrieved by the order dated 28.01.2020 in I.A.No.816 of 2015 in A.S.SR.No.2191 id 2015 (hereinafter will be referred as 'impugned order') on the file of learned XII Additional District Judge, Vikarabad, Ranga Reddy District, the appellant filed the present Civil Revision Petition to set aside the impugned order.
2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned XII Additional District Judge, Vikarabad, Ranga Reddy District.
3. The brief facts of the case as can be seen from the record available before this Court are that the sole plaintiff filed suit vide O.s.No.133 of 2006 on the file of learned Senior Civil Judge at Vikarabad seeking partition and separate possession in respect of suit schedule property against defendant Nos.1 to 6 and during the pendency of the suit, defendant No.1 died and thereby his legal representatives were brought on record. The revision petitioner herein who is the defendant No.2 in the said suit was set ex parte on 07.03.2007 and whereas the said suit was decreed preliminarily on 08.08.2011. The defendant No.2 after coming to know about the preliminary decree has filed 2 MGP,J CRP_1204_2020 petitions under Section 5 of the Limitation Act and under Order IX Rule 7 of the CPC along with written statement vide S.R.Nos.3841 and 3842 of 2012 but the same were returned as not maintainable on the ground that the suit was decreed on merits. Thereafter, the defendant No.2 suffered paralysis and thereby could not approach his counsel to know the stage of the case. Due to paralysis, the defendant No.2 could not speak and thereby he could not inform about the pendency of the case to his family members. It is further contention of the defendant No.2 that he obtained Ayurvedi Medicine from the year June, 2011 onwards at Gurmitkal Village and recovered in the month of March, 2015. Thus, the defendant No.2 has filed I.A.No.816 of 2015 in A.S.S.R.No.2191 of 2015 before the learned XII Additional District Judge, Vikarabad District under Section 5 of the Limitation Act to condone the delay of 1509 days in filing the appeal. To the said petition, respondent/plaintiff filed counter denying the averments of the petition and mainly contended that there is no proof either for the illness, treatment or of his miraculous treatment and thus prayed to dismiss the petition. The learned XII Additional District Judge, Vikarabad District has dismissed the petition on the ground that there is gross negligence and deliberate in action on the part of the petitioner, who failed to explain the inordinate delay of 1509 3 MGP,J CRP_1204_2020 days for preferring the appeal. Aggrieved by the same, the defendant No.2 has preferred the present Civil Revision Petition.
4. Heard learned counsel for the revision petitioner.
5. Though notices were ordered to the respondents, the same were not returned. The notice taken to learned counsel on record for the respondents before the trial Court, was served, however, there was no representation on behalf of the respondents. Thereafter, the revision petitioner/defendant No.2 was permitted to serve notices to the respondents through substituted service. Accordingly, a paper publication was published on 22.10.2023 in Namasthe Telangana, however, there was no representation on behalf of the respondents.
6. The delay caused in filing the appeal by the defendant No.2 is 1509 days. The only reason assigned by the defendant No.2 for such delay is that he suffered paralysis in the year 2011 and he could recover in the year 2015. It is further submission of the learned counsel for the revision petitioner/defendant No.2 that due to paralysis he could not even speak and thereby he could not speak with his family members to pursue the case. To substantiate his contention, the learned counsel for the revision petitioner has filed medical certificate issued by Sri Vaidya Bhujangarao Memorial Shree 4 MGP,J CRP_1204_2020 Dhanvantari Clinic, Gurumatkal, Yadgiri District, wherein the revision petitioner/defendant No.2 alleged to have taken ayurvedic treatment.
7. Now it is to be seen as to whether the defendant No.2 could make out sufficient cause in filing the appeal with a delay of 1509 days. In Sheo Raj Singh (D) Tr.Lrs.. v. Union of India 1, the Apex Court held as under:
"25. G. Ramegowda v. Spl. Land Acquisition Officer9, while summarising the position of law on 'sufficient cause', had the occasion to observe that the contours of the area of discretion of the courts in the matter of condonation of delays in filing appeals have been set out in a number of pronouncements of this Court. It was observed to be true that there is no general principle saving the party from all mistakes of its counsel. Noting that there is no reason why the opposite side should be exposed to a time-barred appeal if there was negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel, it was further observed that each case will have to be considered on the particularities of its own special facts. However, this Court reiterated that the expression 'sufficient cause' in section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring 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 the delay."
8. The suit in O.S.No.133 of 2006 was filed for partition and separate possession in respect of joint family property between the family members. Thus, the defendant No.2 is not a stranger to the plaintiff. The said suit was preliminarily decreed on 08.08.2011 and immediately the defendant No.2 has filed approached the Court to by filing petition under Section 5 of the 1 Appeal (Civil), 5867 of 2015, Judgment decided on 09.10.2023 5 MGP,J CRP_1204_2020 Limitation Act along with written statement and petition under order IX Rule 7 of the CPC but the same were returned on the ground that the same are not maintainable since the suit was decreed on merits. In the meanwhile, the defendant No.2 alleged to have suffered with paralysis. Thus, it cannot be said that the defendant No.2 was negligent and thereby has not made any efforts to challenge the preliminary decree.
9. It is settled proposition of law that a lis has to be disposed of by hearing both sides by giving sufficient opportunities to both sides to put forth their respective contentions by adhering to one of the principles of natural justice i.e., 'Audi Alteram Partem'. No case can be decided without hearing the other side. It is settled law that appeal is a continuation or a stage of the suit. Thus, a person, who is intending to prefer an appeal must be given an opportunity to putforth his/her contention so as to adjudicate the lis on merits rather than denying the appellant to prefer an appeal, which is statutory right.
10. In view of the above facts and circumstances and considering the principle laid down in the above said decision, this Court is of the considered opinion that it is a fit case to set aside the impugned order.
6 MGP,J CRP_1204_2020
11. In the result, the Civil Revision Petition is allowed by setting aside order dated 28.01.2020 in I.A.No.816 of 2015 in A.S.SR.No.2191 of 2015 on the file of learned XII Additional District Judge, Vikarabad, Ranga Reddy District. Accordingly, the petition in I.A.No.816 of 2015 in A.S.SR.No.2191 of 2015 matter is allowed subject to payment of Rs.5,000/- payable to the respondent/plaintiff within two weeks from the date of receipt of copy of this order. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand closed.
_______________________________ JUSTICE M.G.PRIYADARSINI Date: 06.12.2023 AS