Sri Hansraj vs Smt. Sandhya E. Rao

N. Ananda

The appellant was the defendant in S.C. No. 2251/2003. The respondent-plaintiff had filed S.C. No. 2251/2003 for a decree of eviction and recovery of arrears of rent. The appellant after filing written statement did not participate in the proceedings. Therefore, learned trial Judge passed exparte decree on 29.06.2006. The respondent filed Execution Petition No. 313/2010 to execute the decree made in S.C. No. 2251/2003. On receipt of cause notice in Execution Petition No. 313/2010, the appellant realised exparte decree made in S.C. No. 2251/2003, therefore the appellant filed Misc. No. 148/2010 to set aside the exparte decree made in S.C. No. 2251/2003. The petition was resisted by respondent herein. The learned trial Judge recorded evidence. The learned trial Judge on appreciation of evidence has held that appellant has failed to establish sufficient cause for condonation of delay and also failed to satisfy the court that he had been prevented from sufficient cause from appearing before the court on the date decree was made.

I have heard Sri G.C. Channaiah, learned counsel for appellant and Sri A. Madhusudana Rao, learned counsel for respondent.

The grounds urged in the application filed u/s 5 of the Limitation Act and petition filed under Order IX Rule 13 CPC are stated thus:-

The appellant had availed the services of an Advocate by name Sri H. Shivarama Joshi. The appellant had filed written statement in S.C. No. 2251/2003. The advocate of appellant by name Sri H. Shivarama Joshi died on 22.02.2005. Therefore, appellant could not keep track of the proceedings in S.C. No. 2251/2003. It is only after receipt of cause notice in Execution Petition No. 313/2010, appellant enquired and learnt about the death of Advocate Sri H. Shivarama Joshi. On verification, appellant learnt that on 29.06.2006, exparte decree was made in S.C. No. 2251/2003. The appellant has also pleaded that he was suffering from various ailments, which prevented him from appearing before the court.

The learned trial Judge on appreciation of oral and documentary evidence has held that appellant has failed to establish sufficient cause for condonation of delay and appellant has failed to satisfy the court that he had sufficient cause for not participating in the further proceedings in S.C. No.225.1/2003.

It is seen from records that appellant had not availed the services of Advocate by name Sri H. Shivarama Joshi. In fact, the certified copy of vakalath marked as Ex.R.1 does not disclose that appellant had engaged Sri H. Shivarama Joshi, on the other hand appellant had engaged Sri Sundaresh, Advocate, who happens to be junior colleague of Sri H. Shivarama Joshi, Advocate. Therefore, death of Sri H. Shivarama Joshi on 22.02.2005 cannot be pleaded as an excuse. The appellant being a party to proceedings cannot plead ignorance of proceedings in S.C. No. 2251/2003 and decree passed in S.C. No. 2251/2003. The appellant cannot be heard to say that he could not appear before the court as his Advocate had not informed him.

The appellant has admitted though he was suffering from several ailments, he was not admitted to hospital. There is no satisfactory evidence in proof of ailments pleaded by appellant. In the circumstances, the learned trial Judge has held that appellant has failed to establish sufficient cause for condonation of delay. The appellant has failed to satisfy the court that he was prevented from sufficient cause from appearing before the court on the date exparte decree was made.

In a decision reported in Lanka Venkateswarlu (D) by L.Rs. Vs. State of A.P. and Others, , the Supreme Court has held:-

28......The concepts such as "liberal approach", "justice oriented approach", "substantial justice" cannot be employed to jettison the substantial law of limitation. Especially, in cases where the (court'' concludes that there is no justification for the delay.

29......Whilst considering applications for condonation of delay u/s 5 of the Limitation Act, the courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers.

The evidence on record tested in the light of what has been held by the Supreme Court in the aforestated decision would clearly justify the impugned order. There are no reasons to interfere with the impugned order.

Therefore, the appeal is dismissed.

After the judgment was dictated, learned counsel for appellant submits that appellant may be given one year time to vacate and deliver vacant possession of suit schedule premises in S.C. No. 2251/2003 to respondent-landlady.

The learned counsel for respondent-landlady would submit that appellant-tenant has raised all untenable pleas and successfully dragged the proceedings from the year 2006, therefore there is no justification to seek time or grant time. Though I see some justification in the submission made by learned counsel for respondent-landlady regarding the conduct of appellant-tenant, yet having regard to the fact that appellant has been carrying on business in suit schedule premises, I deem it necessary to grant three months time from today to appellant to vacate and deliver vacant possession of suit schedule premises to respondent-landlady, till then Execution Petition No. 313/2010 shall be kept alive.