K. Sai Sri vs Ch. Murali

This civil revision petition is directed to set aside the order dated 04.11.2020 in I.A.No.198 of 2019 in O.S.No.46 of 2013 on the file of the Judge, Family Court-cum-VI Additional District Judge, Nalgonda.

Heard learned counsel for the petitioner and learned counsel for the respondent. Perused the record.

The petitioner-plaintiff filed suit in O.S.No.46 of 2013 for specific performance of agreement of sale dated 06.07.2012 against the respondent-defendant. After receipt of summons, he engaged an Advocate and filed vakalat. Thereafter, he approached the petitioner and her husband about filing of false case against him and asked her to withdraw the case. But, they refused for the same. He approached the elders and the elders advised the petitioner and her husband to withdraw the suit and return original documents and they accepted the same before the elders and sought time for withdrawal of the suit. He was under the impression that the petitioner may withdraw the suit and return the documents. As such, he could not contact his counsel to contest the case as he went to Surat for her livelihood for a long period. It is stated that he came to know that the ex parte decree was passed in the suit on 02.12.2016 due to non-filing of written statement in the suit. After receiving the summons in E.P. he had approached the petitioner and her husband and asked them to withdraw the case. In this regard, several times panchayats were held before the elders and inspite of their request, the petitioner did not heed the advice of the elders. On 10.02.2019 he has approached his counsel and filed application to set aside the ex parte decree on 02.12.2016 along with the present application in I.A.No.198 of 2019 under Section 5 of Indian Limitation Act, 1963 to condone the delay of (773) days from 02.01.2017 to 14.01.2019 in filing the petition to set aside the ex part decree dated 02.12.2016 passed against him in the suit. It is stated in the affidavit that the said delay is neither willful nor negligent one but only due to above mentioned reasons. If the said delay is not condoned and his application to set aside the ex parte decree is also not allowed, it would cause irreparable loss and injury to him.

The petitioner resisted the said application and pleaded that the respondent engaged an Advocate and filed Vakalat and thereafter, he did not choose to appear before the Court. As such, the trial Court has rightly set him ex parte and an ex parte decree was passed. The respondent failed to show sufficient cause to condone the delay of 773 days in filing the petition to set aside the ex parte decree dated 02.12.2016.

On a consideration of the material on record, the trial Court allowed I.A.No.198 of 2019 vide order dated 04.11.2020 subject to payment of costs of Rs.1000/-to the petitioner. Challenging the said order, the present revision is filed.

Learned counsel for the petitioner-plaintiff submits that the trial Court committed error in allowing the application filed by the respondent in condoning the delay (773) days in filing the petition to set aside the ex parte decree passed against him without any sufficient cause. He has placed reliance on the decision of N.Balakrishnan v. M.Krishnamurthy (1998) 7 Supreme Court Cases 123.

Per contra, learned counsel for the respondent-defendant submits that the trial Court has rightly condoned the delay on payment of costs. He further submits that basing on the facts and circumstances of the case, in order to protect the rights of the respondent, the trial Court has rightly allowed the application. He has placed reliance on the decision of Apex Court in Majji Sannemma @ Sanyasirao v. Reddy Sridevi Civil Appeal No.7696 of 2021, dated 16.12.2021 and decision of this Court in Alluri Venkatrama Reddy v. Govindu Kantha Reddy MANU/TL/2038/2022, dated 27.10.2022.

On hearing the submissions of both counsel and on perusing the material on record, the only point that arises for consideration is; whether the impugned order dated 04.11.2020 is sustainable in law?

In N.Balakrishnan’s case ((1998) 7 Supreme Court Cases 123 supra ), the Apex Court at para Nos.9 and 11 held as under:

“ 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 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 untrammelled by the conclusion of the lower court.

Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort 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, newer causes would sprout up necessitating newer 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 uncertainty 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 resort 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.”

Keeping the above principles laid down by the Apex Court in view, in the instant case, originally the suit is filed for specific performance of agreement of sale dated 06.07.2012 and the said suit was decreed ex parte on 02.12.2016. The application was filed to condone the delay of (773) days in filing the petition to set aside the ex parte decree dated 02.12.2016 passed in the suit.

The respondent in the impugned application averred that immediately after receiving of summons from the Court, he engaged an Advocate and filed vakalat. Thereafter, he approached the petitioner and her husband and advised them to withdraw the suit and when they refused, he approached the elders and they accepted the same before the elders. Thereafter he went to Surat for his livelihood for a long time. It appears that there is some force in the contention of the respondent which can be gathered from the facts that in the suit, he was set ex parte for non-filing of written statement on 11.12.2014 and the matter was adjourned from time to time for ex parte evidence of the petitioner. The petitioner was not present for marking of documents till 17.11.2016 and on 23.11.2016 the petitioner was present and an ex parte decree was passed on 02.12.2016.

The respondent came to know about notice being sent through Court in his name in Execution Petition and he approached his counsel and learnt that an ex parte decree was passed. Then, he approached the elders and again they tried to settle the matter and inspite of request and attempts made by the elders, the petitioner did not heed their advise and on 10.02.2019, as per the advise of elders, he approached his counsel and filed the petition to condone the delay of 773 days in filing the petition to set aside the ex parte decree.

The order of the trial Court discloses that the contention of the respondent and the circumstances mentioned and the explanation offered by him found to be satisfactory and by keeping in view his bonafidees, the delay was condoned.

It is well settled principle of law that condonation of delay is the discretion of the Court. However, such discretion can be exercised only on satisfactory explanation and length of delay is not criteria.

The impugned order discloses that the trial Court has accepted the explanation offered by the respondent found satisfactory and exercised its discretion and not resorted to arbitrary or perverse exercise of discretion. In view of settled principles of the Apex Court in Balakrishnan’s case (1 supra), this Court should not disturb such finding, much less under revisional jurisdiction, unless said exercise of jurisdiction was not based on untenable grounds or arbitrary or perverse.

For the foregoing reasons, I am of the considered view that the trial Court has rightly exercised the discretion and condoned the delay of (773) days in order to advance substantial justice and allowed the application. Therefore, the impugned order does not suffer from any infirmity warranting interference by this Court in exercise of powers under Article 227 of the Constitution of India.

In the result, the civil revision petition is dismissed. There shall be no order as to costs. Pending miscellaneous petitions, if any, stand closed.