Andhra Pradesh High Court - Amravati
Kommaraju Murali Chakradhara Rao vs Kommaraju Ravindranath Tagore on 25 January, 2021
Author: M.Venkata Ramana
Bench: M.Venkata Ramana
0 HON'BLE SRI JUSTICE M.VENKATA RAMANA
CIVIL REVISION PETITION Nos. 94 & 420 of 2019
&
CIVIL MISCELLANEOUS APPEAL No.7 & 229 of 2019
COMMON JUDGMENT :
Civil Revision Petition No.94 of 2019 and Civil Miscellaneous Appeal No.7 of 2019 are directed against the common order dated 07.12.2018 in I.A.No.15 of 2016 and G.L.No.8 of 2016 in O.S.No.248 of 2007 on the file of the Court of the learned Additional Senior Civil Judge (FTC), Gudivada respectively.
2. I.A.No.15 of 2016 was filed under Section 5 of the Limitation Act to condone the delay of 993 days in filing petition G.L.No.8 of 2016 under Order-9, Rule-13 CPC to set aside the ex parte decree. The 1st defendant is the revision petitioner as well as the appellant in the above matters.
3. Civil Revision Petition No.420 of 2019 and Civil Miscellaneous Appeal No.229 of 2019 are directed against the common order in I.A.No.2 of 2016 and un-numbered I.A. in O.S.No.248 of 2007 dated 07.12.2018 on the file of the same Court respectively. The 2nd defendant is the revision petitioner in I.A.No.2 of 2016 filed under Section 5 of the Limitation Act to condone the delay of 948 days in filing petition in un- numbered I.A. under Order-9, Rule-13 CPC to set aside the ex parte decree in the suit.
4. Since both these matters arise out of the proceedings relating to the same suit against common orders of the trial Court, since arguments are addressed in all these matters together, they are being disposed of by this common order.
MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019 2
5. The parties as arrayed in the suit shall be referred to hereinafter for convenience.
6. The 1st and 2nd respondents as the plaintiffs instituted the suit against the defendants 1 to 5 for the following reliefs:
"(a) Declare the registered sale deed dated 12.09.2006, Doc.No. 5377 /2006 of Sub Registry, Gannavaram, executed by D-3, D-4 and D-5 in favour of 1st defendant is null and void;
(b) Declare the registered sale deed dt. 12.09.2006, Doc.No.5378/2006 of Sub Registry, Gannavaram, executed by D1,D-3, D-4 and D-5 in favour of D-2t is null and void;
(c) to grant costs of the suit"
7. The dispute in the suit is in respect of two different extents of Ac.0-12 cents each described in plaint 'B' and 'C' schedules respectively in R.S.No.137/2 of Pedauvutupalli of Unguturu Mandal of Krishna District.
Both these extents together are Ac.0-24 cents as described in plaint 'A' schedule.
8. The 2nd plaintiff is the daughter of the 1st plaintiff. The defendants 1,3,4 and 5 and the 1st plaintiff are the sons of Sri Kommaraju Raja Rao. The 2nd defendant is the son of the 3rd defendant. There is no dispute that the entire plaint 'A' schedule property belonged to Sri Kommaraju Raja Rao. He died on 12.05.1995.
9. The dispute is essentially with reference to claim set up by both the parties to plaint 'B' and 'C' schedule extents. The plaintiffs claim that Sri Raja Rao executed a Will dated 21.03.1994 bequeathing plaint 'A' schedule property in favour of the 1st plaintiff out of which he had gifted away plaint 'B' schedule extent of Ac.0-12 cents to the 2nd plaintiff under a registered gift deed dated 31.08.2006. Complaint of the plaintiffs is also that without manner of right, the defendants 3, 4 and 5 executed a sale MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019 3 deed in respect of 605 sq.yards out of plaint 'B' schedule property on 12.09.2006 in a fraudulent transaction in favour of the 2nd defendant and that the defendants 1 and 3 to 5 executed another sale deed dated 12.09.2006 in favour of the 2nd defendant in respect of the remaining extent of plaint 'A' schedule property shown in plaint 'C' schedule fraudulently.
10. The defendants 1 and 2 contested the suit initially filing their written statements mainly disputing the Will set up by the plaintiffs as a rank forgery and supporting the sale of extents referred in the plaint in favour of the 2nd defendant, being legal and valid.
11. When the suit was coming up for trial, it was dismissed for default, on 09.11.2011. It was later on restored as per orders in I.A.No.234 of 2011 dated 06.12.2012. Thereafter, the defendants 1 and 2 were set ex parte on the ground that they did not take part in the course of trial leading to passing an ex parte decree on 19.03.2013.
12. The 1st defendant filed I.A.No.15 of 2016 on 07.01.2016 along with a petition under Section 9, Rule-13 CPC to set aside the ex parte decree, in G.L.No.8 of 2016. The main ground urged by the 1st defendant to explain away the delay in filing the petition under Order-9, Rule-13 CPC was that after the suit was dismissed for default, he was given to understand that the matter was no more pending and that he was not required to attend the Court. He contended that he came to know through their villagers that the plaintiffs were trying to alienate the plaint schedule properties, on which he caused enquiries in the concerned Court at Gudivada and then learnt that the suit was restored and an ex parte decree was passed against them on 19.03.2013. He further claimed that MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019 4 he did not know as to what happened after dismissal of the suit on 09.11.2011.
13. The 2nd plaintiff resisted the claim of the 1st defendant mainly contending that there is huge delay of 948 days in filing the petition to set aside the ex parte decree without explaining day to day delay. Contending that no reasons are assigned by the 1st defendant in support of his claim, it is stated that the petition so filed needs dismissal.
14. The contention of the 2nd defendant in I.A.No.2 of 2016 is also with reference to want of knowledge of the proceedings in the suit after it was dismissed for default. He further contended that his father-in-law Sri Madala Bhaskar Rao, when was attending to his work at Sub Registrar's office, Gannavaram, learnt that the 1st plaintiff was proclaiming that he succeeded in the suit obtaining an ex parte decree and was proposing to sell the plaint schedule property through certain real-estate agents for a throw away price to make wrongful gain, causing loss to him. Thereafter, according to the 2nd defendant, he enquired about the suit and then came to know that his Advocate, who was then appearing in the suit Sri Akkapeddi Srinivasa Rao, had passed away after the dismissal of the suit for default.
15. The 2nd defendant also contended that on account of his employment, then he was staying at Hyderabad and that his wife, who was suffering from cancer, was being treated at Hyderabad and Bengaluru, who also passed away later on. On account of this situation, according to the 2nd defendant, he could not visit his native village. In those circumstances, he requested to condone the delay and to set aside the ex parte decree claiming that he has excellent chance to succeed in MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019 5 the suit. He further claimed that a paper publication was taken out against him as substituted service in the suit, which is not sufficient service.
16. The 2nd plaintiff resisted this petition on similar grounds denying the circumstances by which the 2nd defendant claimed that he did not have knowledge of passing of an ex parte decree against him including death of his learned counsel and also the wife of the 2nd defendant while the 2nd defendant being employed at Hyderabad. There is specific denial of ill-health suffered by the wife of the 2nd defendant from cancer and consequent treatment given to her. The 2nd plaintiff also contended that an opportunity was given to contest the matter in the course of the suit proceedings which the 2nd defendant did not avail, that forced the trial Court to set him ex parte.
17. Petitions of the defendants 1 and 2 were dismissed by the learned trial Judge mainly on the ground that the reasons offered for condonation of delay are not believable in as much as they were represented by an Advocate when I.A.No.234 of 2011 was pending. Thus, the trial Court did not accept their contention that they did not have knowledge of the proceedings in the suit. The learned trial Judge also held that the 2nd defendant failed to prove, producing acceptable material that his wife suffered from cancer and that she had treatment at Hyderabad and Bengaluru. On such grounds, the learned trial Judge dismissed all the petitions by the impugned orders.
18. Heard learned counsel for the petitioners/appellants and the respondents.
19. Now, the point for determination is-"Whether the defendants 1 and 2 made out sufficient cause explaining the delay in filing petitions MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019 6 under Order-9, Rule-13 CPC to set aside the ex parte decree and if in the circumstances delay is required to be condoned including setting aside the ex parte decree?
POINT:
20. The main reason asserted by both the defendants 1 and 2 in support of their claim and as a reason to explain delay in filing petition under Order-9, Rule-13 CPC is that they were not aware of the proceedings of restoration of the suit by trial Court in I.A.No.234 of 2011 by an order dated 06.12.2012.
21. The fact which is not in dispute is that the suit was dismissed for default on 09.11.2011. The plaintiffs filed I.A.No.234 of 2011 under Order-9, Rule-9 CPC to set aside such default order.
22. The main contention of the defendants 1 and 2 is that they never took part in the proceedings relating to I.A.No.234 of 2011 and the order was passed behind their back.
23. The learned counsel for the 1st defendant in CRP No.94 of 2019 produced copies of the docket proceedings in I.A.No.234 of 2011 in the course of hearing.
24. These docket notings recorded that Sri M.A.J.Kumar, an Advocate, appeared for the defendants 1 and 2 in I.A.No.234 of 2011. For the reason that no counter was filed in I.A.No.234 of 2011 on 08.11.2012, a conditional order was passed directing the plaintiffs to lead evidence producing witnesses and filing affidavits on 06.12.2012. On account of compliance of this direction on 06.12.2012 the docket notings further recorded that I.A.No.234 of 2011 was allowed.
MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019 7
25. The contention of the defendants 1 and 2 is that Sri M.A.J.Kumar was never instructed by them nor they gave him vakalat to represent in the above matter. Their further contention is that they have complained against Sri M.A.J.Kumar to Bar Council of State of Andhra Pradesh alleging mis-conduct and false representation on their behalf, in collusion with the plaintiffs. Copies of such complaint are produced in the course of hearing by both of them.
26. It is interesting to find that I.A.No.234 of 2011 was posted to 22.06.2012 for appearance of the respondents upon service of notice. Since batta was not paid, obviously no notice was taken out to the respondents therein viz., the defendants 1 and 2. On 22.06.2012, batta was paid with petition and it was allowed condoning the delay. Thereafter notice was directed to the defendants 1 and 2, posting the above petition to 02.08.2012. The docket notings dated 02.08.2012 also recorded the fact that batta was not paid and therefore, it is obvious that notices to respondents/defendants 1 and 2 were not taken out. However, on that day, Sri M.A.J.Kumar, Advocate, filed vakalat for the defendants 1 and 2 as per the docket entry dated 02.08.2012 and the matter was posted for counter to 04.10.2012. This petition was again posted to 08.11.2012 for counters from 04.10.2012. On 08.11.2012, the proceedings referred to above were recorded and consequently on 06.12.2012 the petition was allowed.
27. It is rather surprising how the proceedings dated 22.06.2012 recorded that batta was paid with petition for service of notice on defendants 1 and 2 and again on 02.08.2012 it was recorded as if batta MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019 8 was not paid on which day Sri M.A.J.Kumar, Advocate, appeared for the defendants 1 and 2.
28. Another ground urged by the 2nd defendant is that he came to know that his Advocate, who was till then appearing in the suit Sri Akkapeddi Srinivasa Rao died, after dismissal of the suit for default. The 2nd plaintiff did not specifically dispute this fact in her counter.
29. The 2nd defendant did not produce any medical record relating to ailment suffered by his wife during that period.
30. With reference to appearance of Sri M.A.J.Kumar, Advocate for the defendants 1 and 2 in I.A.No.234 of 2011 or otherwise, the affidavits of the defendants 1 and 2 filed in support of the petitions are silent nor is there any reference to the nature of the proceedings went on in I.A.No.234 of 2011 questioning the same. It is contended for the defendants 1 and 2 referring to the above circumstances that a fraud was played on the trial Court in obtaining an ex parte decree against them, in the above circumstances.
31. The learned counsel for the plaintiffs 1 and 2 strenuously contended that the defendants 1 and 2 deliberately avoided their appearance in the trial Court, who were given sufficient opportunity to participate in the course of trial which they did not avail. The learned counsel for the plaintiffs further contended that taking advantage of hike in the value of the real-estate, the petitions were filed to set aside the ex parte decree along with the petitions to condone the delay in filing them. Thus, it is contended that both these petitions lack bona fides. Supporting the order of the trial Court in I.A.No.234 of 2011 in restoring the suit, it is contended that the suit was restored to the knowledge of the defendants MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019 9 1 and 2 and thereafter the suit continued. Thus supporting the reasons assigned by the learned trial Judge in rejecting the contention of the defendants 1 and 2, the learned counsel for the plaintiffs contended that there is no reason to warrant interference with the impugned orders.
32. Delay in filing the petitions under Order-9, Rule-13 CPC by the defendants 1 and 2 is quite enormous. At the same time, the close relationship among the parties and the nature of the dispute in relation to immovable property in between them cannot be overlooked. Both the defendants were interested to contest the suit and therefore they filed their written statements setting out their defence against the claim of the plaintiffs.
33. The fact that they were not aware of restoration of the suit consequent to the orders in I.A.No.234 of 2011, as such cannot be dis- counted. Omission to refer this fact in the affidavit of the defendants 1 and 2, which is otherwise borne out of the record from the proceedings of the trial Court itself in I.A.No.234 of 2011, is not fatal. When these facts relate to the proceedings of the Court, want of pleading from the parties by itself cannot be a reason to reject this ground set forth by the defendants 1 and 2. The manner in which the proceedings went on, particularly as recorded on 22.06.2012 and 02.08.2012, are reflections of the manner by which the proceedings therein, were brought out as if both the defendants 1 and 2 were represented by an Advocate whom they had duly engaged.
34. It is not as though the defendants remained quiet against Sri M.A.J.Kumar, Advocate, in respect of his role in this matter. They also complained to the Bar Council of the State of Andhra Pradesh. This MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019 10 complaint strengthens giving a touch of authenticity, in questioning the nature of proceedings went on therein, by the defendants 1 and 2. Therefore, the grounds so urged by the defendants 1 and 2 on this score require consideration.
35. The contention of the 2nd defendant resting upon death of his Advocate who appeared then in the matter and his wife's illness due to cancer which occupied his time during the relevant period also cannot be easily be brushed aside. Want of production of medical record as to ill- health of his wife when he clearly stated that she was suffering from cancer and on account of which she passed away can have no bearing. Possibly the learned trial Judge could have given certain attention to such fact without standing on the technicality for want of supporting medical record.
36. In the given facts and circumstances, having regard to the nature of dispute between the parties, the learned trial Judge should have been liberal in considering their request. Merely because, the delay is huge, it cannot by itself a reason to reject an application filed under Section 5 of the Limitation Act. In fact, this question was considered by the Hon'ble Supreme Court in N.Balakrishnan v. M. Krishnamurthy1 where it was observed as under:
"9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncontainable 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 1 . (1998) 7 SCC 123 MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019 11 such finding, much less in revisiional 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 untrammeled by the conclusion of the lower court."
37. This ruling was followed in M.K.Prasad vs. P.Arumugam2.
38. In Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others3 relied on for the defendant No.1 certain criteria are laid down in exercise of discretion in the process of liberal approach, under Section 5 of the Limitation Act. Relevant observations in para-3 of this ruling are as under:
"3. The legislature has conferred the power to condone delay by enacting Section 5 (Any appeal or any application, other than an application under any of the provisions of Order XXI of the CPC, 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) of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be 2 .(2001)6 Supreme Court Cases 176 3 . (1987) 2 Supreme Court Case 107 MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019 12 preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
39. These observations are consistently referred to in later judgments like Hemlata Verma vs. M/s. ICICI Prudential Life Insurance Co.Ltd., and another 4.
40. Sufficient cause as propounded by defendants 1 and 2 needs consideration on the above guidelines. In view thereof, the reasons so assigned by the defendants 1 and 2 therefor require acceptance.
41. It is an accepted practice and the Court needs to take judicial notice of the fact that the parties usually rely on their learned counsel for communication in respect of any pending matters in the Court. Particularly in the scenario as is seen in this case, where the suit was initially dismissed for default, whenever restoration petition is filed, it is proper for any party or litigant to expect information in respect thereof from their learned counsel. In case of 2nd defendant, unfortunately, his learned counsel, who was appearing earlier and who also filed written statement on his behalf, passed away thereafter. In the above circumstances, it cannot be stated that the 2nd defendant was not vigilant in pursuing the matter. Added to it, ill-health of his wife should have come in his way to attend in this matter. Therefore, diligence expected from him was entangled in the circumstances he was placed in. 4 . MANU/SC/1584/2019=2019 5 AWC4704SC MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019 13
42. In M.K.Prasad vs. P.Arumugam (2 supra) also relied on for the defendant No.1 the nature of discretion expected to be exercised is stated to advance substantial justice and its cause.
43. N.Balakrishnan vs. M.Krishnamurthy (1 supra) also held that the primary function of a Court is to adjudicate a dispute between the parties and to advance substantial justice. Relevant observations in this ruling in paras 12 and 13 are as under:
"12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari, [1969]1SCR1006 and State of West Bengal v. The Administrator, Howrah Municipality, [1972]2SCR874a .
13. It must be remembered that in every case of delay there can be some lapse 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 put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."
44. In the same context, on behalf of the petitioners different judgments of this Court in Andari Govindaiah vs. Vemula Venkatamma (died) and others5, Kavali Narayana and others vs. Kavali Chennamma6, Pramod Kumar Sharma and others vs. 5 . 1995(3) ALT 685 6 . 2005(1) ALT 805 MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019 14 Upender Kumar Agarwal7 and P.Buchanna v. B. Yadagiri8 are relied on.
45. However, on behalf of the plaintiffs, Oriental Aroma Chemical Industries Ltd., vs. Gujarat Industrial Development Corporation and another9 and D.Gopinathan Pillai vs. State of Kerala and another10 are relied on contending that there are no circumstances as such in this case to warrant exercise of discretion in favour of the defendants 1 and 2. Observations in Oriental Aroma Chemical Industries Ltd. (9 supra) in para-8 are relevant in this context, which are extracted hereunder:-
"8. ....... The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106........"
46. Sympathy cannot be a factor to consider in this type of cases, according to the contention of the plaintiffs, relying on D.Gopinathan Pillai (10 supra).
7 .1995(1) ALT 539 8 . 2017(3) ALT 596 9 .2010(5) SCC 459 10 .2007 SCC 322 MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019 15
47. Sufficient cause required to be made out by the defendants to explain delay in filing petitions under Order-9, Rule-13 CPC is based on facts. The facts and circumstances in this case, as discussed supra, reflect that the reason set out by the defendants 1 and 2 of want of knowledge of the proceedings in the suit from the time when it was attempted to be restored by the plaintiffs, prima facie, stands to acceptance. When they choose to set out specific defence in the written statement before the suit was dismissed for default, they would not have chosen to abandon their defence if they had come to know of the restoration of the suit. They should have come to know, in the circumstances set out by them, as to passing of ex parte decree and immediately thereafter, they came up with appropriate applications under Order-9, Rule-13 CPC along with the petitions under Section 5 of the Limitation Act to set aside the ex parte decree. Therefore, their conduct in approaching the Court for this purpose is appreciable. In fact, it reflected their action in good faith to contest the claim of the plaintiffs in the suit. Thereby, want of due diligence on their part cannot be inferred.
48. Therefore, they should be given an opportunity to contest the suit.
49. Applications filed under Order-9, Rule-13 CPC by the defendants 1 and 2 were also considered by the learned trial Judge and they were dismissed by the common orders now impugned. The reason set out in the petition filed under Section 5 of the Limitation Act and the one filed under Order-9, Rule-13 CPC when are identical, the Court is bound to allow the petition filed under Order-9, Rule-13 CPC or under MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019 16 Order-9, Rule-9 CPC, as the case may be, when once an application under Section 5 of the Limitation Act is allowed.
50. The trial Court is expected to consider a petition filed under Section 5 of the Limitation Act in the first instance. It cannot as such consider an application filed under Order-9, Rule- 13 or Order-9, Rule-9 CPC, as the case may be, along with an application filed under Section 5 of the Limitation Act.
51. The reason is this: unless an application under Section 5 of the Limitation Act is allowed, question of entertaining the application for the relief stated above either to set aside the ex parte decree or to restore the suit, cannot arise. If the petition filed under Section 5 of the Limitation Act is allowed, its effect will definitely influence the nature of consideration in later applications of nature referred to above. However, once an application filed under Section 5 of the Limitation Act is dismissed, further consideration of applications filed along with it either for setting aside the ex parte decree or for restoration of the suit cannot arise. After dismissal of an application filed under Section 5 of the Limitation Act, any such application pending should necessarily be closed. There need not be any specific order thereon except recording the fact that in view of the dismissal of an application filed under Section 5 of the Limitation Act, it should be closed. It more appears as a feature of administrative effort than consideration in judicial terms.
52. More often than not and of late, the trial Courts are rather failing to follow this time tested practice. It is a technical requirement and has substance. At times, the trial Courts are numbering both the petitions filed under Section 5 of the Limitation Act and under Order-9, Rule-13 or MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019 17 Order-9, Rule-9 CPC together without understanding the purpose and object behind numbering an application under Section 5 of the Limitation Act first and fall out of such application.
53. Similar is the approach seen of the trial Court in the present matters, which has to be detested. The trial Courts must know and understand that the procedural requirements are not mere formalities and that they do not have jurisdiction, power or authority to flout such procedural requirements with impunity. Though the procedure is stated to be a handmaid to advance cause of substantial justice, it is a requirement by which the procedural discipline is prescribed which the Courts should follow.
54. In view of these circumstances, rejecting the objections of the plaintiffs 1 and 2, the contentions of the defendants 1 and 2 are accepted in explaining the delay in filing applications under Order-9, Rule-13 CPC. In view of what is stated above, it is desirable for the trial Court to consider the petitions filed under Order-9, Rule-13 CPC by the defendants 1 and 2 separately. They were not even numbered in the trial Court. It is rather surprising to find that petitions filed under Order 5 of the Limitation Act and the one filed under Order-9, Rule-13 CPC were considered together without bearing in mind the implications and the impact they would have. It is desirable to direct the learned trial Judge to consider those applications filed under Order-9, Rule-13 CPC separately, of the defendants 1 and 2 upon allowing both the C.R.Ps.
55. In the result, C.R.P.No.94 of 2019 and C.R.P.No.420 of 2019 stand allowed. No costs. Consequently, I.A.No.15 of 2016 and I.A.No.2 of 2016 in O.S.No.248 of 2007 on the file of the learned Additional Senior MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019 18 Civil Judge (FTC), Gudivada, filed by the defendants 1 and 2 respectively are allowed. Delay in filing petitions under Order-9, Rule-13 CPC is condoned. The trial Court is directed to number the petitions filed under Order-9 Rule-13 CPC by the defendants 1 and 2, call for counters, if they are not available on record, from the plaintiffs and shall dispose of after hearing the parties concerned, on merits.
56. In view of the above direction, both the CMA Nos.7 of 2019 and 229 of 2019 are disposed of. No costs.
As sequel thereto, pending miscellaneous petitions, if any, shall stand closed. Interim Orders, if any, shall stand vacated.
________________________ JUSTICE M.VENKATA RAMANA Dt: 25.01.2021 RR MVR,J CRP Nos.94,420 & CMA Nos.7,229 of 2019 19 HON'BLE SRI JUSTICE M.VENKATA RAMANA CIVIL REVISION PETITION Nos. 94 & 420 of 2019 & CIVIL MISCELLANEOUS APPEAL Nos.7 & 229 of 2019 Dt:25.01.2021 RR