The Limitation Act, 1963, prescribed limitation with a view to see that a litigant does not drag on the litigation. Section 5 gives an opportunity to a litigant to file applications beyond the prescribed period of limitation provided, he is able to establish that he was prevented by sufficient cause from approaching the Court within the said period. Even though explanation for day- to-day delay is not being insisted by the Courts, the litigant has to nevertheless furnish the satisfactory explanation for filing the application beyond the prescribed period of limitation. This responsibility on the part of the litigant is much more in cases of abnormal delays, for by such delays right came to be vested in his adversary and such a right cannot be easily taken away by making unduly liberal approach by the Court


The Hon'ble Sri Justice C.V.Nagarjuna Reddy

Civil Revision Petition No.1807 of 2012

01-11-2012

Jangana Rajendra Kumar

Basava Srinivas

^Counsel for the petitioner: Sri GVS.Kishore Kumar

!Counsel for the respondent:    ---

<Gist:

>Head Note:

?Cases referred:

2009(3) ALT 637 = 2009 (3) ALD 355

Order:
        This Civil Revision Petition is filed against Order, dated
28-02-2012, in IA.No.184 of 2011 in OS.No.99 of 2008, on the file of the Court
of the learned Senior Civil Judge, Yelamanchili.
        The petitioner is the defendant in the aforesaid suit filed by the
respondent for recovery of money on the foot of a promissory note.  After
entering appearance in pursuance of the suit summons, he failed to file written
statement.  On 02-01-2009, the case was adjourned on costs of Rs.100/- for not
filing written statement by the petitioner.  Subsequently, as the petitioner did
not file the written statement, and he was called absent, he was set ex parte.
After the suit was adjourned on five occasions from 02-01-2009, the same was
decreed on 09-03-2009 for a sum of Rs.1,42,199/- with future interest.
Thereafter, the petitioner filed IA.No.184 of 2011 under Section 5 of the
Limitation Act, 1963, for condonation of delay of 681 days in filing an
application to set aside the ex parte decree.  The said application was
dismissed by the lower Court by the Order under revision.
        At the hearing, Mr.GVS.Kishore Kumar, learned Counsel for the petitioner,
submitted that the suit pronote is a rank forgery and that the denial of the
opportunity to the petitioner to contest the suit on merits, would cause serious
failure of justice.
        In his affidavit, filed in support of the application for condonation of
delay, the petitioner inter alia averred as under:
        "I am the deponent herein and defendant in the above suit.  As such, I
fully acquainted with the facts of the suit.  The plaintiff filed the above suit
against me for recovery of suit promissory amount.  In fact, I do not know the
plaintiff and I never executed any promissory note much less the suit promissory
note.  I never received any amount from the plaintiff, as I have no acquaintance
with the plaintiff.  After receipt of the suit notice, I engaged advocate &
contested the suit.  But subsequently, I feel sick and shifted from Sabavaram to
Golugonda Mandal.  On that I unable to meet my counsel to proceed further in the
above suit.  Recently, I contacted my counsel and came to know that the above
suit was decreed on 09-03-2009 as exparte.  I have good case in the above suit
and every possibility to succeed in the above suit."

As rightly observed by the lower Court, the petitioner, being a Government
servant, would have availed sick leave, if he really fell sick.  He has not
adduced any evidence to substantiate his plea that he was sick.  Moreover, the
petitioner failed to specify atleast the approximate time, if not the precise
date, on which he fell sick and for how long the sickness continued.  He has
also not indicated as to when he was shifted from Sabavaram to Golugonda Mandal 
and whether he has informed the said fact to his counsel.
        The Limitation Act, 1963, prescribed limitation with a view to see that a
litigant does not drag on the litigation.  Section 5 gives an opportunity to a
litigant to file applications beyond the prescribed period of limitation
provided, he is able to establish that he was prevented by sufficient cause from
approaching the Court within the said period.  Even though explanation for day-
to-day delay is not being insisted by the Courts, the litigant has to
nevertheless furnish the satisfactory explanation for filing the application
beyond the prescribed period of limitation.  This responsibility on the part of
the litigant is much more in cases of abnormal delays, for by such delays right
came to be vested in his adversary and such a right cannot be easily taken away
by making unduly liberal approach by the Court (See Government of Andhra Pradesh
vs Murali Madhava Rao1).
        In the instant case, the explanation offered by the petitioner for
condonation of inordinate delay of 681 days is bereft of material particulars
regarding the petitioner's sickness and his shifting to Golugonda Mandal from
Sabavaram let alone substantiating the said allegations by filing relevant
material.  The petitioner has not shown any kind of diligence in filing the
written statement and contesting the suit and also in filing the application for
setting aside the ex parte decree within the reasonable time.  On considering
the conspectus of the facts in their entirety, I am of the opinion that the
lower Court is more than justified in dismissing the petitioner's application
for condonation of delay.
        For the abovementioned reasons, the Civil Revision Petition is dismissed.
        As a sequel, CRPMP.No.2423 of 2012, filed by the petitioner for interim
relief, is disposed of as infructuous.
_________________________  
(C.V.Nagarjuna Reddy, J)
Date: 01-11-2012

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.