Ganta Narsimha Rao vs Ganta Kanakamma

T. Ch. Surya Rao, J.—The order, dated 23-7-2003, passed by the learned Senior Civil Judge, Karimnagar, in I.A. No. 610 of 2003 in O.S. No. 105 of 1992, whereunder and whereby the learned Judge condoned the delay of 1230 days in filing an application to set aside the ex parte decree, dated 15-11-1999, is now sought to be assailed in the instant revision petition.

The suit, O.S. No. 105 of 1992, was filed for partition by the plaintiff-revision petitioner claiming himself to be the adopted son of the late husband of the defendant-respondent herein. The defendant in the suit was set ex parte for her default in filing written statement. Therefore, she filed an application seeking to set aside the ex parte decree passed on 15-11-1999 accompanied by I.A. No. 610 of 2003 for condoning the delay of 1230 days occasioned in having filed such application. The grounds set forth inter alia in the petition appear to be that the plaintiff was never adopted by her husband and that after the demise of her husband, she filed O.P. No. 842 of 1985 seeking succession certificate and the plaintiff having not come forward and raised any objections in the O.P., the succession certificate was granted to her and that the plaintiff taking advantage of her illiteracy and to grab the properties left behind by her husband, filed the frivolous suit and that the plaintiff himself remained ex parte in the suit, which was dismissed for default on 6-7-1993 and in view of the same, she kept quiet and that taking advantage of her innocence, without her knowledge, the plaintiff got the suit restored after six years and the petitioner could not contact her Counsel to give instructions to proceed with the case as there was none to look after her. Therefore, an ex parte decree was passed against her and there was sufficient cause for her to condone the delay.

That application was resisted by the plaintiff. The case of the plaintiff was that the defendant was deliberately remained absent in the suit and therefore an ex parte decree was passed and that when he filed a final decree petition in I.A. No. 59 of 2003 and when notice was served upon her in the month of January, 2003, she waited for a longtime and filed the present application on 30-4-2003. Thus, there was delay of three months even after the service of notice in I.A. No. 59 of 2003 and that she should explain each day''s delay and the delay being 1230 days should not be condoned. Under the impugned order, the learned Judge allowed the petition on payment of costs of Rs. 1,500/-.

Certain facts are discernible from the impugned order, which need be considered for an effective adjudication of the instant revision petition. The suit was filed on 29-9-1992, as aforesaid, for partition. The summons in the suit was served upon the defendant, but when she failed to appear, she was set ex parte on 3-11-1992. On the same day, her Counsel filed vakalat and sought for setting aside the ex parte order. The ex parte order was set aside and the suit was posted for filing written statement. For her default in filing written statement, again she was set ex parte on 26-4-1993. Since the plaintiff did not come forward to adduce evidence, the suit itself ended in dismissal on 16-11-1993 for default. The plaintiff, therefore, filed I.A. No. 1164 of 1993 seeking restoration of suit. In that application, notice was ordered to the defendant. Even that I.A. No. 1164 of 1993 was dismissed on 1-1-1994 for the default of the plaintiff. The plaintiff, therefore, filed I.A. No. 523 of 1997 for restoration of the earlier petition accompanied by another application to condone the delay in filing I.A. No. 523 of 1997. Again notice was ordered in that application to the defendant. The defendant appeared and after having heard either side, delay of 987 days was condoned. Eventually, I.A. No. 1164 of 1993 was allowed and the suit was restored to file on 2-11-1999. Since the defendant was set ex parte for her default in filing written statement, the suit was posted to 15-11-1999 to plaintiff s evidence and eventually an ex parte decree was passed.

Having regard to the above matrix, the Court below felt convinced and allowed the application and condoned the delay of 1230 days on the condition of defendant''s paying costs of Rs. 1,500/-.

The learned Counsel for the petitioner represents that non-issuance of notice while restoring the suit, which was dismissed for default, can hardly be said to be a reasonable and satisfactory explanation of the delay. He further seeks to contend that when there is a good case on merits, delay has not necessarily to be condoned. Finally, he seeks to contend that in the absence of sufficient explanation liberal construction of words ''sufficient cause'' to condone the delay does not arise.

Per contra the learned Counsel for the respondent represents that when the delay was condoned by the trial Court by reaching the conclusion that there had been sufficient cause, High Court shall not interfere in such discretionary orders.

Having regard to the rival contentions, the points that arise for my determination in this revision petition are :

(1) Whether there is sufficient cause to condone the delay ?

(2) Whether substantial justice shall be considered as a ground sufficient enough to condone the delay ?

(3) Whether the delay that has been condoned after exercising discretion by the Court cannot be interfered with by the revisional Courts ?

It is true that while seeking condonation of the delay u/s 5 of the Limitation Act, the party has to convince the Court that he has sufficient cause for having not made the application within the prescribed time and his explanation has to cover the whole period of delay. It is not possible to lay down precisely as to what facts or matters would constitute a sufficient cause. However, it has also been understood that the expression ''sufficient cause'' should be liberally construed so as to advance substantial justice when no negligence or any want of bona fides is imputable to the party. Smt. Sandhya Rani Sarkar Vs. Smt. Sudha Rani Debi and Others, .

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 no 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 untrammeled by the conclusion of the lower Court. N. Balakrishnan Vs. M. Krishnamurthy, .

The Apex Court in many a judgment held that the words ''sufficient cause'' u/s 5 of the Limitation Act shall receive a liberal construction so as to advance substantial justice. Shakuntala Devi Jain Vs. Kuntal Kumari and Others, , The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, , State of Haryana v. Chandramani 1996 (2) UJ (SC) 105, N. Balakishnana v. M. Krishnamurthy (supra), Special Tehsildar, Land Acquisition, Kerala Vs. K.V. Ayisumma, .

Recently the Apex Court in Bhagmal v. A.P. Co-operative Marketing and Consumer Fed. Ltd. AIR 2004 SC 1230 again reiterated that when once the delay was condoned by the Court while exercising its discretion, interference with the same is not proper.

The learned Counsel for the petitioner seeks to place reliance upon the bench judgment of this Court in New India Assurance Company Limited, New India Assurance Company Limited, Hyderabad Vs. G. Sarada Prasad and others, , wherein this Court held that it could not be said that where there was a good case on merits delay has necessarily to be condoned. The facts obtaining in that case appears to be peculiar. An award was passed by the Motor Accidents Claims Tribunal. Assailing the same, two appeals were filed; one by the claimants and the other by the Insurance Company. The claimants'' appeal was disposed of in the year 1997 allowing enhancement of compensation. No representation was then made by Insurance Company when its appeal against the same award was pending. However, the second appeal filed by the company had been heard three years thereafter and was dismissed. Having regard to the decision in the other appeal filed by the claimants, the Insurance Company sought to file two letter patent appeals with delay of 1047 days and 139 days respectively. Under those circumstances, the bench had to reach the conclusion that the delay should not be necessarily condoned even where there is good case on merits.

Boddupally China Venkanna and Others Vs. Edulla Narayana Reddy, was a case where the delay was sought to be condoned on the ground that delay of 331 days caused due to compromise reached between the parties to withdraw the suit. But, however, the party failed to prove by any reliable evidence the said cause. Under those circumstances, this Court held that in the absence of sufficient explanation liberal construction of words ''sufficient cause'' to condone the delay does not arise.

Vaggu Agamaiah and Others Vs. South Central Railway, Secunderabad and Another, , was a case where the plaintiff filed the suit for declaration against the defendant. The defendant was set ex parte for his non-appearance and posted the suit for hearing, but when there was no representation for the plaintiff on the date of hearing, the suit was dismissed for default. The plaintiff filed an application for restoration of the suit. That application was allowed without giving notice to the defendant. Subsequently the suit was decreed ex parte. In the application filed by the defendant seeking to set aside the ex parte decree, the only contention raised was that the restoration of the suit earlier was without notice to the defendant. No other cause was shown for the delay in filing the application seeking to set aside the ex parte decree. Under such circumstances the trial Court was of the view that since the party failed to explain sufficient cause for the delay of 426 days in filing the petition under Order 9 Rule 13, the delay could not be condoned. This Court while upholding the order passed by the trial Court held that the ground that no notice was issued while restoring the suit alone is not sufficient to condone the delay.

Ultimately, keeping in view broadly the various principles laid down by the Apex Court and this Court as well, it shall be the endeavour to see whether the fact situation obtained in the instant case warrants such an approach by the Courts. Ultimately the Courts shall convince itself that the grounds mentioned inter alia in the application filed seeking condonation of delay or the material placed before the Court in support of such application should warrant the necessary conclusion to be reached even while approaching the problem liberally keeping in view the substantial justice to be rendered to the parties. It may be mentioned here that Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not restore to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, new causes would sprout up necessitating new persons to seek legal remedy by approaching the Courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainly and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not restore to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. When that be the object behind the enactment, the conclusion that the approach of the Courts in condoning the delay should be liberal is undoubtedly true.

Here in the instant case the defendant was set ex parte for having not filed the written statement in the suit and soon thereafter the suit itself was dismissed for default. When an application was filed to restore the suit, notice was issued to the defendant, who contested the matter. That application again was dismissed for default. In the application filed to restore that application, again notice was issued to the defendant. It is only after hearing both parties, eventually both the applications were allowed and the suit was restored to file. However, at that stage no further notice was given to the defendant about the further step in the suit. Having regard to the fact that the defendant remained ex parte earlier, straight away the suit was posted for plaintiff''s evidence and the suit was decreed ex parte. So, in the peculiar circumstances of this case, it is but reasonable for the Court to have issued notice to the defendant in the suit after its restoration notwithstanding the fact that the defendant remained ex parte, having due regard to the subsequent facts that notices were issued to the defendant in the application filed by the plaintiff seeking restoration of the suits as well as the application. That apart, here is a case where the defendant is said to have obtained a succession certificate as a successor to the state of her late husband. It appears, no objection whatsoever was raised by the plaintiff at that stage claiming himself to be the adopted son. Now, he seeks to file the suit for partition on the premise that he was the adopted son of the deceased husband of the defendant and to her exclusion. The facts, therefore, justified the conclusion that it is not a frivolous contention on the part of the defendant that the plaintiff was not the adopted son of her late husband on a prima facie consideration. Therefore, the facts, in my considered view, warrant to conclude that there was a good case for the defendant to set forth in the suit and her non-appearance before passing ex parte decree was not out of any negligence. However, it is contended by the learned Counsel for the petitioner that even when notice v/as issued in the final decree petition, the defendant kept quiet for three months and then filed the present application. That stance alone is not sufficient to conclude that the earlier delay prior to filing of the final decree application was equally on account of the sheer negligence on the part of the defendant. Ultimately it is to be seen that the defendant is the old, innocent and illiterate woman. Having regard to the circumstances obtaining in the case and having been convinced with those circumstances, when the Court exercised its discretion to condone the delay, which discretion cannot be said to be unjudicious or in any manner perverse, it is not open to this Court to interfere with such discretionary orders as held by the Apex Court. Even otherwise, the problem can be seen in a different dimension. If the delay is not condoned, the defendant would be out of Court once for all. If the delay is condoned the plaintiffs suit will not be dismissed automatically, still it is a case where a suit has to be disposed of by the Court after hearing either side. Therefore, condonation of delay will not cause any irreparable loss to the plaintiff.

For the above reasons, I see no reason to interfere with the impugned order. The revision petition, therefore, must fail and is dismissed. However, in the circumstances, no order as to costs.