Sec.5 of Limitation Act - delay 502 days - non - representation of counsel is a valid ground to condone the delay and to allow the set aside exparte decree application filed after receiving E.P. notices - Lower court allowed on costs of Rs. 5000/- High court confirmed the order of lower court and dismissed the revision = R.Krishna alias Kistaiah, S/o. Late R. Agamallaiah,R/o.Neredmet, Secunderabad....Petitioner/Respondent/Plaintiff R. Bala Narasaiah (died) per LRs(petitioner Nos.5 to 10) and others....Respondents/Petitioners/Defendants = 2014 ( JANUARY - VOL - 1 ) JUDIS.NIC.IN/ JUDIS _ ANDHRA / NAME OF FILE = 10711

Sec.5 of Limitation Act - delay 502 days - non - representation of counsel is a valid ground to condone the delay and to allow the set aside exparte decree application filed after receiving E.P. notices - Lower court allowed on costs of Rs. 5000/-  High court confirmed the order of lower court and dismissed the revision = 

 In the affidavit filed in support of IA.No.826 of 2011, the defendants
contended that they had engaged a counsel by name  V. Srinivas of
Bhongir on their behalf and instructed him to conduct the case on their behalf;
that written statement was also filed in 2007; that 2nd defendant was looking
after the proceedings in the suit on behalf of  other defendants by contacting
their counsel; that their counsel informed the defendants that he would look
after the case and inform them  as and when their presence was required;
suddenly on 29.07.2011, notices were received in EP.No.21 of 2011 by them asking 
them to attend the court on 19.08.2011 along with copy of the EP which indicated
that a decree was passed on 02.03.2010 against them; that the counsel avoided to
contact them; later they verified through another counsel and came to know that
they had been set   ex parte on 17.02.2010 as the counsel did 
not represent the matter and an ex parte decree was passed.  They contended that
on account of their earlier counsel not informing them about the proceedings in
the suit, the ex parte decree came to be passed and the same be set aside after
condoning the delay in filing the application to set aside the ex parte decree. =
By order dt.05.08.2013, the court below allowed IA.No.826 of 2013.  It held
that although the defendants had filed a written statement and contested the
matter, their counsel did not represent the case on 17.02.2010; therefore, they
were set ex parte on that day; that the counsel for defendants also did not
cross-examine the plaintiff and ex parte decree was passed on 02.03.2010; that
valuable rights of the defendants were involved in the matter and they cannot be
condemned unheard, although their counsel did not defend them.  It therefore,
held that defendants should be given an opportunity to contest the matter and
the delay of 502 days can be condoned on payment of costs of Rs.5,000/- to
plaintiff.=

I am of the view that the court below had correctly exercised its
discretion in condoning the delay of 502 days in filing the application to set
aside the ex parte decree on payment of costs of Rs.5,000/- to the
respondent/plaintiff.
20. In this view of the matter, I am not inclined to interfere with the impugned
order.  Therefore, the Civil Revision Petition is dismissed. 

2014 ( JANUARY - VOL - 1 ) JUDIS.NIC.IN/ JUDIS _ ANDHRA / NAME OF FILE = 10711

THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO          

CRP.No.4674 of 2013

03-01-2014

R.Krishna alias Kistaiah, S/o. Late R. Agamallaiah,R/o.Neredmet,
Secunderabad....Petitioner/Respondent/Plaintiff

R. Bala Narasaiah (died) per LRs(petitioner Nos.5 to 10) and
others....Respondents/Petitioners/Defendants

Counsel for the Petitioner/  Respondent/Plaintiff:Sri Ch. Siddhartha Sarma

Counsel for the Respondents/Petitioners/Defendants: Sri K. Goverdhan Reddy

<GIST:

>HEAD NOTE:  

?Cases referred:

1.      AIR 1987 SC 1353
2.      (1998) 7 SCC 123
3.      (2005) 3 SCC 752
4.      2013 (6) ALT 237


The Court made the following :  [order follows]


THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO              

CRP.No.4674 of 2013

ORDER:

        This Revision is filed challenging the order dt.05.08.2013 in IA.No.826 of
2011 in OS.No.131 of 2006 of the Senior Civil Judge, Bhongir.
2. The petitioners herein are defendants in the above suit.  The suit was filed
for specific performance of an agreement of sale dt.09.10.2005 allegedly
executed by defendant Nos.1 to 3 in favor of the respondent/plaintiff.  The
defendants filed a written statement but remained ex parte and did not lead
evidence.  The suit was decreed ex parte on 02.03.2010.
3. IA.No.826 of 2011 was filed by the defendants under Section 5 of the
Limitation Act, 1963 to condone the delay of 502 days in filing an application
under Order IX Rule 13 CPC to set aside the ex parte decree dt.02.03.2010.                            
They also filed another IA under Order IX Rule 13 CPC to set aside the said decree.
4. In the affidavit filed in support of IA.No.826 of 2011, the defendants
contended that they had engaged a counsel by name  V. Srinivas of
Bhongir on their behalf and instructed him to conduct the case on their behalf;
that written statement was also filed in 2007; that 2nd defendant was looking
after the proceedings in the suit on behalf of  other defendants by contacting
their counsel; that their counsel informed the defendants that he would look
after the case and inform them  as and when their presence was required;
suddenly on 29.07.2011, notices were received in EP.No.21 of 2011 by them asking 
them to attend the court on 19.08.2011 along with copy of the EP which indicated
that a decree was passed on 02.03.2010 against them; that the counsel avoided to
contact them; later they verified through another counsel and came to know that
they had been set   ex parte on 17.02.2010 as the counsel did 
not represent the matter and an ex parte decree was passed.  They contended that
on account of their earlier counsel not informing them about the proceedings in
the suit, the ex parte decree came to be passed and the same be set aside after
condoning the delay in filing the application to set aside the ex parte decree.
5. Counter-affidavit was filed by the plaintiff/respondent opposing the above
application contending that the allegations made by the defendants cannot be
believed; that the plaintiff had filed his affidavit in lieu of chief-
examination on 15.09.2009 and the suit was decreed only on 02.03.2010; that
defendants did not explain why they did not approach their counsel during this
period; by blaming their counsel, the defendants cannot get away with the
inordinately long delay of 502 days in filing the application to set aside the
ex parte decree.  The plaintiff therefore prayed that IA.No.836 of 2011 filed by
the defendants be dismissed.
6. By order dt.05.08.2013, the court below allowed IA.No.826 of 2013.  It held
that although the defendants had filed a written statement and contested the
matter, their counsel did not represent the case on 17.02.2010; therefore, they
were set ex parte on that day; that the counsel for defendants also did not
cross-examine the plaintiff and ex parte decree was passed on 02.03.2010; that
valuable rights of the defendants were involved in the matter and they cannot be
condemned unheard, although their counsel did not defend them.  It therefore,
held that defendants should be given an opportunity to contest the matter and
the delay of 502 days can be condoned on payment of costs of Rs.5,000/- to
plaintiff.
7. Challenging the same, this Revision is filed by the plaintiff.
8. Heard Sri P. Venugopal, counsel for Ch.Siddharth Sharma, counsel for the
petitioner/plaintiff and Sri K. Goverdhan Reddy, counsel for the respondent
Nos.2 to 10.
9. The counsel for petitioner contended that the defendants were negligent in
contesting the suit after having filed the written statement; that they did not
explain day-to-day delay; that the court below, without stating that it is
satisfied that sufficient cause has been shown by the defendants in explaining
the delay in filing the application under Order IX Rule 13 CPC, could not have
condoned the delay.  He also contended that the defendants failed to avail the
opportunity of contesting the suit and therefore no indulgence can be shown to
them in the matter.
10. The counsel for the respondent on the other hand contended that the
defendants had given valid reasons for condoning the delay in filing the
application under Order IX Rule 13 CPC; that the court below rightly condoned
the said delay on payment of costs; that the defendants had relied on their
counsel to inform them about the proceedings in the suit, but he did not inform
them and the negligence/inaction of their counsel cannot be ignored and the
defendants cannot be made to suffer for it.  He also contended that the suit
relates to specific performance of an agreement of sale of valuable land and the
defendants be allowed to contest the suit on merits as the plaintiff was
adequately compensated by the trial court by imposing costs of Rs.5000/-.  He
also cited the decisions in Collector, Land Acquisition, Anantnag and another v.
Mst. Katiji and others1,                   N. Balakrishnan v. M. Krishnamurthy2,
State of Nagaland v. Lipok AO and others3 and Bavisetty Jagganna Dora (died) per
LRs v. Somi Estates and Housing (P) Ltd.4.
11. I have noted the submissions of both sides.
12. In the present case, the suit was filed in 2006 for specific performance of
an agreement of sale in respect of 3/4 th share in valuable land of extent
Acs.9.16 guntas in Medipally Village, Bommalaramaram Mandal, Nalgonda District
by the petitioner/plaintiff against the respondents/defendants.  The defendants
had engaged a counsel by name V. Srinivas of Bhongir and through him filed a
written statement in 2007.  Thereafter, according to the defendants, their
counsel, having promised to let them know as and when their participation in the
suit is necessary, did not do so; consequently, they were set ex parte on
17.02.2010 and an ex parte decree was passed on 02.03.2010.  IA.No.826 of 2011
was filed on 16.08.2011 to condone the delay of 502 days in filing the petition
under Order IX Rule 13 CPC to set aside the said ex parte decree.
13. The point for consideration is                                                                                                  "whether the defendants had shown sufficient cause for condonation of the above delay" ?
14. In Collector, Land Acquisition, Anantnag (1 supra), cited by the counsel for
respondents/defendants, the Supreme Court held that the power to condone delay
by enacting Section 5 of the Limitation Act, 1963 is to enable the courts to do
substantial justice to parties by disposing of matters on merits; that the
expression "sufficient cause" employed by the Legislature is adequately elastic
to enable the courts to apply the law in a meaningful manner which serves the
ends of justice which is the life purpose for the existence of the institution
of courts; substantial justice deserves to be preferred as against technical
considerations; and the courts should prefer to deliver justice on merits in
preference to the approach which scuttles a decision on merits.
15. In N. Balakrishnan (2 supra), an application to set aside an ex parte decree
dt.28.10.1991 for declaration of title and ancillary reliefs was dismissed by
the trial court on 17.02.1993.  It also dismissed for default an application
filed on 19.08.1995 to condone delay of 883 days in setting aside the order
dt.17.02.1993.  The appellate before the Supreme Court, who had filed the said
applications, contended that the advocate engaged by him failed to inform him
about the dismissal of the application on 17.02.1993 and that he came to know of
the same only on 05.07.1995 when he received summons from the Executing Court;  
that he went to the same advocate and gave Vakalatnama and signed papers for
resisting execution proceedings, but the advocate did not do anything; and that
the trial court had erred in dismissing the applications filed by him.  The
Supreme Court held that the appellant's conduct does not on the whole warrant to
castigate him as an irresponsible litigant and what he did in defending the suit
was not very much far from what a litigant would broadly do; that although he
could have been more vigilant, during these days when everybody is fully
occupied with his own avocation of life, an omission to adopt such extra
vigilance cannot be used as a ground to depict him as an irresponsible litigant
and visit him with drastic consequences.
It held :
"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 not
matter, acceptability of the explanation is the only criterion.  Sometimes delay
of the shortest range may be uncondonable due to a want of acceptable
explanation whereas in certain other cases, delay of a 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 such finding, much less in
revisional 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 untrammelled by the
conclusion of the lower court.
... ... ...
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
the 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 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."
16. In State of Nagaland (3 supra), the Supreme Court followed the above
decision and after referring to other cases on the issue, held that when State
is a litigant, it is not impermissible to show some latitude to it and it cannot
be put on the same footing as an individual, since the State has to operate
through impersonal machinery.
17. In Bavisetty Jagannadora (4 supra),
this Court held that reasons have to be
recorded by the trial court in considering an application for condonation of
delay in filing an application to set aside an ex parte decree under Order IX
Rule 13 CPC and a cryptic order, without giving reasons, cannot be sustained.
18. Keeping in view the above decisions, I am of the opinion that the facts of
the present case are somewhat similar to those in                           N.
Balakrishnan (2 supra).  Like in that case, here also the defendants had engaged
a counsel by paying him fee and through him had filed a written statement in
2007 itself.  Proceedings in the suit admittedly dragged on and on 17.02.2010,
the defendants were set ex parte due to non-appearance of their counsel.
According to the defendants, the counsel had told them that he would call them
as and when their presence is required.  Unfortunately, he did not appear to
have contacted the defendants and informed them about the proceedings in the
suit, after filing of the written statement.  I see no reason to disbelieve the
plea of the defendants that they had waited bonafidely, believing that the
counsel would inform them about the proceedings in the suit.  Of course, they
could have been more vigilant and could have visited the advocate at short
intervals to check up the progress of litigation, but as observed by Supreme
Court in                           N. Balakrishnan (2 supra), omission to adopt
such extra vigilance, cannot be allowed to visit a litigant with drastic
consequences and depict him as an irresponsible litigant, when he did take steps
to engage a counsel to defend him in the suit.  As rightly observed by the
Supreme Court, length of delay is no matter but acceptability of the explanation
is the only criterion.  I am satisfied that the defendants had made out
sufficient cause for condonation of the delay in filing the application to set
aside the ex parte decree and that they deserve a chance to contest the suit on
merits.
19.  I am of the view that the court below had correctly exercised its
discretion in condoning the delay of 502 days in filing the application to set
aside the ex parte decree on payment of costs of Rs.5,000/- to the
respondent/plaintiff.
20. In this view of the matter, I am not inclined to interfere with the impugned
order.  Therefore, the Civil Revision Petition is dismissed.  No costs.
However, since the suit is an old suit of the year 2006, both parties shall co-
operate with the expeditious disposal of the suit and the trial court shall
endeavour to dispose it of within six (6) months from the date of receipt of a
copy of this order.
21. Miscellaneous applications pending, if any, in this Civil Revision Petition
shall stand closed.
_____________________________________    
JUSTICE M.S.RAMACHANDRA RAO        
Date :  03-01-2014

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