Sec.5 of limitation Act condone delay of 255 days = After coming to know about the dismissal of the suit, he filed I.A.No.45 of 2011 under section 5 of the Limitation Act to condone the delay in filing the petition to set aside the order dismissing the suit as abated, and the delay sought to be condoned is 255 days. It is mentioned by him in the affidavit filed in support of the petition that after the death of his mother, his daughter developed illicit intimacy with a person of Mahaboobnagar and the said person to grab his property beat the first respondent and threatened him. Under those circumstances the first respondent states that he left Mahaboobnagar to save his life and came back only in the first week of June, 2011. Thereafter, it is said that he obtained the death certificate of his mother from the Municipality and then filed the petition under section 5 of the Limitation Act.= The suit filed by the first respondent is for declaration of the title and consequential injunction, wherein the substantive rights of the parties are involved for consideration. As per the law laid down by the Supreme Court, the courts while dealing with the application under section 5 of the Limitation Act should not adopt pedantic and hyper technical approach and shall allow the parties to contest the cases on merits.

PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9899
HONOURABLE SRI JUSTICE R. KANTHARAO        

CIVIL REVISION PETITION No. 3359 OF 2012  

13-02-2013

Bulusu Sundareshwara Murthy and another  ... Petitioners    

And

Ravi Kumar and another                            ...Respondents

Counsel for the Petitioners: Sri Shafath Ahmed Khan

Counsel for the respondents: Sri K. Someswara Kumar

<Gist:

>Head Note:

?Cases referred:
1. 1987 (1) SCC 685
2. AIR 2002 SC 1201

ORDER:
        This Civil Revision Petition is filed by the first defendant in O.S.No. 88
of 2003 on the file of the Court of II-Additional Senior Civil Judge, (FTC),
Mahaboobnagar, against the order dated 09.03.2012, in I.A.No. 45 of 2011 in the
said suit.
2.      I have heard Sri Shafath Ahmed Khan, the learned counsel appearing for the
revision petitioner/first defendant and            Sri K.Someswara Kumar, the
learned counsel appearing for the respondent/plaintiff.
3.      The brief facts relevant for considering the present Civil Revision
Petition are that the respondent's mother G.V. Ramanamma filed O.S.No.88 of 2003
on the file of the Court of
II Additional Senior Civil Judge (FTC), Mahaboobnagar, for declaration of title
to the suit property and consequential injunction.  Pending the suit, the
plaintiff died on 07.06.2010.  The second respondent is her only son.  He did
not make any application to implead himself as the plaintiff in the suit after
the death of his mother and consequently the suit was dismissed as abated on
03.11.2010.   
After coming to know about the dismissal of the suit, he filed
I.A.No.45 of 2011 under section 5 of the Limitation Act to condone the delay in
filing the petition to set aside the order dismissing the suit as abated, and
the delay sought to be condoned is 255 days.  It is mentioned by him in the
affidavit filed in support of the petition that after the death of his mother,
his daughter developed illicit intimacy with a person of Mahaboobnagar and the
said person to grab his property beat the first respondent and threatened him.
Under those circumstances the first respondent states that he left Mahaboobnagar
to save his life and came back only in the first week of June, 2011.
Thereafter, it is said that he obtained the death certificate of his mother from
the Municipality and then filed the petition under section 5 of the Limitation
Act.
4.      The petition was opposed by the revision petitioners by filing counter
contending that the first respondent was fully aware of the dismissal of the
suit, he did not properly explain each days delay in filing the application
under section 5 of the Limitation Act, and sought to dismiss the petition.
5.      The learned trial Court referring to the judgments in "Bhag Singh Vs.
Daljit Singh (1987-02-25)1 and Ram Nath Sao Alias Ram Nath Sahu and others V.  
Gobardhan Sao and others2,
wherein the Supreme Court laid down the ratio to the
effect that pedantic and hyper technical view of the matter cannot be taken
while dealing with the applications under section 5 of the Limitation Act where
stakes are high and/or arguable points of facts and law are involved in the
case, allowed the application filed by the first respondent by imposing costs of
Rs.600/- to be paid to the revision petitioners.
6.      The learned counsel appearing for the revision petitioners argued that the
trial court did not advert the counter filed by the revision petitioners and did
not furnish adequate reasons for allowing the application, and therefore, he
contends that the order passed by the trial Court is liable to be set aside.  I
absolutely see no force in the contention urged by the learned counsel appearing
for the revision petitioners.  From the order passed by the learned trial Court,
it is obvious that the trial Court took into consideration the affidavit filed
by the first respondent in support of his petition and decided the application
by following the ratio laid down by the Supreme Court in the said decisions.
The suit filed by the first respondent is for declaration of the title and
consequential injunction, wherein the substantive rights of the parties are
involved for consideration.  As per the law laid down by the Supreme Court, the
courts while dealing with the application under section 5 of the Limitation Act
should not adopt pedantic and hyper technical approach and shall allow the
parties to contest the cases on merits.
7.      In the instant case, the first respondent furnished sufficient grounds for
the delay and considering those grounds, the learned trial Court allowed the
petition.  I do not find any irregularity or illegality in the order passed by
the learned trial Court to interfere in revisional jurisdiction.  I absolutely
see no merits in the Civil Revision Petition and accordingly dismiss the same
without any order as to costs.

___________________
JUSTICE R.KANTHARAO    
Date: 13-02-2013

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.