to condone the delay of 1942 days in preferring the appeal= whether there is any truth made in the averments made for condoning the delay. 9. Evidently, no document is filed about the illness of the counsel who appeared for the petitioners in the lower Court nor his affidavit was filed before this Court. Further more, it is to be noted that the 5thdefendant is close relative of other defendants and it is not the case of the petitioners-defendants that the 5th defendant has got conflict of interest with them thereby they were deprived of their valuable rights. In fact the plea of the 5th defendant in the written statement was that the plaintiff was not entitled to the suit claim, though he did not go into the witness box. So far as prejudice and the right of the plaintiff is concerned, evidently, the petitioners-defendants 1 to 4 do not deny the receipt of the consideration and they have retained the amount for more than one decade with them and it was not returned thereby they have enriched themselves, which is also a factor that has to be taken into consideration. Therefore, taking over all view of the matter, the theory set up by the petitioners about the failure of the advocate not informing them about the stage of the proceedings cannot be accepted. The petitioners have not shown due diligence in pursing the matter and no cause muchless sufficient cause is shown to condone the inordinate delay.

HON’BLE SRI JUSTICE V.ESWARAIAH

&

HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

ASMP No.1678 OF 2012

in

AS (SR) No.2277 OF  2012 &

AS (SR) No.2277 OF  2012

Dated 4-2-2013

Nrg/Srp

HON’BLE SRI JUSTICE V.ESWARAIAH

&

HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

ASMP No.1678 OF 2012

in

AS (SR) No.2277 OF  2012 &

AS (SR) No.2277 OF  2012

 

Between:                                              

Smt. Bali Satyavathi and others         

         …….…  Petitioners

And

Dr.Smt.Syamala Chistie

                                                       …..… Respondent

This Court made the following:

HON’BLE SRI JUSTICE V.ESWARAIAH

&

HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

ASMP No.1678 OF 2012

in

AS (SR) No.2277 OF  2012 &

AS (SR) No.2277 OF  2012

ORDER: ( per Hon’ble Sri Justice NRL Nageswara Rao )

        This application has been filed to condone the delay of 1942 days in preferring the appeal against the judgment and decree dated 19-7-2006 in OS No.8 of 2002 on the file of VII Addl. District Judge, (Fast Track Court), Visakhapatnam. 

2.     The suit has been filed on the basis of an agreement of sale dated 14-3-1994 for specific performance or alternatively for refund of the amount.  The petitioners herein are defendants 1 to 5.   Defendants 1 to 4 in the suit did not file written statement. Defendant no.5 filed written statement.  Defendant no.5 is none other than the husband of Defendant no.3. Defendants nos.2 and 3 are the daughters of defendant no.1. The Court below, considering the rival contentions and after appreciating the evidence adduced decreed the suit in part granting the alternative relief of refund of amount of Rs.10,32,223/- together with interest @ 6% per annum from the date of the suit till the date of realization.  Aggrieved the said judgment and decree the present appeal is filed by the defendants and this application is filed to condone the delay of 1942 days in filing the appeal.

3.    The Point for consideration is:-

Whether there are sufficient and reasonable grounds to condone the delay?

4.     In order to make out a case for condoning the delay, the petitioners in para 4 of the affidavit filed in support of the petition pleaded thus:-

“4. I submit that we could not file the written statement in the above suit, however, the 5^th appellant, who is D-5 in the suit has filed written statement and denied the relief prayed by the plaintiff. I submit stated that after engaging the services of Sri P.R.L.Sarma, Advocate, to appear on behalf of us,  he has suffering with paralysis disease and did not attend the Courts right from the year 2004 onwards. I submit that though they have constantly touch with the advocate for  every date of hearing till 2004, he has informed us that he will take care the case before the Lower Court.  Having believed the same, we could not verify the proceedings before the trial Court and therefore, we could not lead evidence and could not cross examining the plaintiff and his witnesses.  I submit that the 5^th appellant has filed his written statement and contended that the suit agreement is barred by limitation and further contended that the suit agreement is not true, valid and binding on them. The 5^th appellant further contended  that the receipts said to have been issued are not related to the suit transaction and he himself and the 4^th appellant never acted as agent on behalf of us.” 

5.     It is further stated by the petitioners that the suit was partly decreed on 19-7-2006, but they came to know only when notices in EP No.13 of 2011 are served on them and immediately thereafter they contacted their advocate and came to know about the judgment and decree.  Therefore, they contend that the judgment and decree is not sustainable and the petitioners shall be given an opportunity to ventilate their grievance.

6.    The learned counsel for the petitioners has relied upon the Supreme Court decisions reported inMANIBEN DEVRAJ SHAH vs. MUNICIPAL CORPORATION OF BRIHAN, MUMBAI[1] &  COLLECTOR, LAND ACQUISTION, ANANTNAG vs. KATIJI2.   

7.     There is not dispute and there cannot be any dispute with the proposition laid down in the said decisions that the Courts should give an opportunity to the litigant to defend himself. ‘Sufficient cause’  as contemplated under Section 5 of the Limitation Act has been interpreted and held that it has to be considered liberally and substantial rights of the parties should not be ignored, merely because of the delay.  But where in cases the delay is inordinate and if it is explicitly clear from the facts of the case that the party failed to act diligently, then it cannot be treated as  ‘sufficient cause’.  In Maniben Devraj Shah’s case        (1 supra),  in fact in para 17, the decision in Katiji’s case      (2 supra) has been considered.  In para 20 of the judgment in Maniben Devraj Shah’s case (1 supra) the Supreme Court referring to the decision in  VEDABAI vs. SHANTARAM BABURAO PATIL3 observed that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises. The Supreme Court in Maniben Devraj Shan’s case (1 supra)  has found fault with the order of the learned single Judge of the High Court for accepting unsustainable reasons given by the Corporation and condoning the delay of more than 7 years.  The decision Katiji’s case (2 supra) relied on by the counsel for the petitioners does not lay down any different law.

8.    The question before the Court will be as to whether there is any truth made in the averments made for condoning the delay.

9.     Evidently, no document is filed about the illness of the counsel who appeared for the petitioners in the lower Court nor his affidavit was filed before this Court. Further more, it is to be noted that the 5^thdefendant is close relative of other defendants and it is not the case of the petitioners-defendants that the 5^th defendant has got conflict of interest with them thereby they were deprived of their valuable rights.   In fact the plea of the 5^th defendant in the written statement was that the plaintiff was not entitled to the suit claim, though he did not go into the witness box. So far as prejudice and the right of the plaintiff is concerned, evidently, the petitioners-defendants 1 to 4 do not deny the receipt of the consideration and they have retained the amount for more than one decade with them and it was not returned thereby they have enriched themselves, which is also a factor that has to be taken into consideration. Therefore, taking over all view of the matter, the theory set up by the petitioners about the failure of the advocate not informing them about the stage of the proceedings cannot be accepted.  The petitioners have not shown due diligence in pursing the matter and no cause muchless sufficient cause is shown to condone the inordinate delay. Therefore, we find no reason to condone the delay and accordingly the ASMP NO.1678 of 2012 is dismissed. As a consequence thereof, AS (Sr) No.2277 of 2012 is also dismissed. No order as to costs.

                                                ____________________

V.ESWARAIAH,J

  _____________________________

N.R.L.NAGESWARA RAO, J

Date: 04.02.2013

Nrg

---

[1] (2012) 5 SCC 157

2. AIR 1987 SC 1353

3 (2001) 9 SCC 106