Section 5 of Limitation Act to condone the delay of 789 in preferring the appeal against the preliminary decree = it is hard to digest his explanation that on account of migrating to Chennai in search of his livelihood he could not meet to counsel within time and failed to file the appeal. His very participation in the final decree proceedings exposes fallacity of his explanation. Even assuming for argument sake that he was in Chennai during the relevant period on account of employment, when he found time to meet the counsel and contest the final decree proceedings, there was no reason he could not file appeal which is more important an exercise in time. Though liberal approach is required, it shall not be extravagancy.

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

Civil Revision Petition No.2647 of 2015

16-07-2015

Majji Somulu @ Swamy naidu. Petitioner/Appellant

Majji Nagaraju @ Nagesh and three others Respondents/Respondents    

Counsel for Petitioner  : Sri Suresh Kumar Pusarla

Counsel for Respondent:--

<Gist:

>Head Note:

?Cases referred:

HONBLE SRI JUSTICE U. DURGA PRASAD RAO        

Civil Revision Petition No.2647 of 2015

ORDER:
        The petitioner/defendant No.1 seeks to set aside the order
dt:09.02.2015 in I.A.No.292 of 2014 in unnumbered Appeal Suit No of
2014 passed by learned Principal District Judge, Srikakulam dismissing the
application filed under Section 5 of Limitation Act to condone the delay of
789 in preferring the appeal against the preliminary decree in O.S.No.59 of
2006 passed by Junior Civil Judge, Amadalavalasa.
2)      The petitioner who is the first defendant and other defendants suffered
preliminary decree in a partition suit. Aggrieved, it appears the petitioner/
first defendant filed an appeal with a delay of 789 days in the Court of
Principal District Judge, Srikakulam and so, he filed I.A.No.292 of 2014 to
condone the delay submitting the explanation for the delay to the effect that
he went to Chennai to eke-out his livelihood and stayed there and he could
not meet his counsel within time and hence inevitable delay was occurred.
a)      The first respondent/plaintiff vehemently opposed the said petition on
the contention that subsequent to the preliminary decree dated 31.10.2011 he
filed final decree petition I.A.No.204 of 2012 before the trial Court on
22.06.2012 for appointment of Commissioner to ascertain mesne profits and
to divide the suit property into 5 equal shares and in the said petition the
present petitioner appeared and filed his counter on 01.02.2013 and contested
the said petition and therefore, his plea that he was at Chennai at the relevant
period to eke-out his livelihood is false.
b)      The above contention was found favour with learned Principal District
Judge who held that there were no bona fides on the part of petitioner and
ultimately dismissed the petition.
        Hence, the CRP.
3)      Heard both sides.
4)      The submission of learned counsel for petitioner is that in construing
sufficient cause under Section 5 of Limitation Act, the Court shall not be
pedantic in its approach so as to stifle the legitimate right of a party to
contest
the matter on merits. He would submit that in the instant case the appellate
Court erred in rejecting the explanation offered by the petitioner stating that
he migrated to Chennai in search of his livelihood.
5)      Per contra, learned counsel for respondent No.1/plaitniff opposed the
petition on the submission that the petitioner very much contested the parallel
proceedings in final decree petition during the relevant period and therefore,
his explanation that he migrated to Chennai for his livelihood was rightly
disbelieved by the appellate Court.
6)      The point for determination in this revision petition is:
Whether the petitioner showed sufficient cause to condone the delay of 789
days in preferring the appeal?
7)  POINT:      The concept of term sufficient cause employed in Section 5 of
Limitation Act was subjected to interpretation by the Apex Court and various
High Courts umpteen times in various decisions. To converge the substance:
a)      Ordinately a litigant does not stand to benefit by lodging an appeal
late and 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.
b)      The length of delay is no matter. Acceptability of explanation
basing on the bona fides is the only criteria.
        So, the above principles would show that the Court must not be pedantic
in its approach in deciding delay condonation petitions and shall not dismiss
them on the mere ground that delay was too long. The criteria for acceptance
or rejection of explanation for the delay rests on the bona fides of the factual
explanation offered by the petitioner. If the reason strikes the conscience of
the Court and convinces that any person in petitioners position would
inevitably have caused the delay shown in the petition, the Courts have to
consider the application with empathy and sympathy.
8)      In the light of above principles it has now to be seen whether the
petitioner explained sufficient cause for the delay.  Admittedly, the petitioner
and other defendants suffered preliminary decree. As well pointed out by the
counsel for respondent No.1, the petitioner participated and contested the
final decree proceedings in I.A.No.204 of 2012.  That being so, it is hard to
digest his explanation that on account of migrating to Chennai in search of
his livelihood he could not meet to counsel within time and failed to file the
appeal. His very participation in the final decree proceedings exposes
fallacity of his explanation. Even assuming for argument sake that he was in
Chennai during the relevant period on account of employment, when he
found time to meet the counsel and contest the final decree proceedings, there
was no reason he could not file appeal which is more important an exercise in
time. Though liberal approach is required, it shall not be extravagancy.
9)      In the result, there are no merits in the C.R.P. and accordingly it is
dismissed by confirming the order in I.A.No.292 of 2014 in unnumbered
Appeal Suit No of 2014 passed by learned Principal District Judge,
Srikakulam.
        As a sequel, miscellaneous applications pending, if any, shall stand
closed.
 _________________________  
U. DURGA PRASAD RAO, J    
Date: 16.07.2015 

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