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D. Omprakash v/s M/s. Sree Venkataraya Investment & Finance Co. Ltd. rep. by B. Satyanarayana General Manager and Company Secretary & Others

    Civil Revision Petition Nos. 2809 of 2013, 4843 of 2012 & 5064 of 2012

    Decided On, 06 November 2013

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MS. JUSTICE G. ROHINI

    For the Petitioner: K. Anoop Kumar, Advocate. For the Respondents: R1, Challa Gunarajan, Advocate.



Judgment Text

Common Order:

Since parties are common and common questions of fact and law arise for consideration, these three Revision Petitions are heard together and decided by this common order.

The revision petitioner is the defendant No.4 in O.S.Nos.24 of 2003 and 26 of 2003 on the file of the Court of the I-Addl. Chief Judge, City Civil Court, Secunderabad and O.S.No.149 of 2003 on the file of the Court of the III-Senior Civil Judge, City Civil Court, Secunderabad. All the said suits are filed by the respondent No.1 in these Revision petitions for recovery of money allegedly due from the defendants i.e., the revision Petitioner and the respondents 2 to 4 herein.

O.S.Nos.24 of 2003 and 26 of 2003 were decreed ex parte on 5.12.2003 whereas O.S.No.149 of 2003 was decreed ex parte on 18.08.2003.

The revision petitioner/defendant No.4 filed applications for setting aside the said ex parte decrees along with applications under Section 5 of the Limitation Act, 1963 for condonation of delay in seeking to set aside the ex parte decrees.

There was delay of 2404 days in filing the application to set aside the ex parte decrees in O.S. No.24 of 2003 and O.S. No.26 of 2003 whereas there was delay of 2513 days in filing the application to set aside the ex parte decree in O.S. No.149/2003.

Therefore, the petitioner filed I.A.Nos.2042 of 2010 and 2041 of 2010 respectively in O.S.Nos.24 and 26 of 2003 for condonation of the delay. By separate orders passed on 4.6.2012, the learned I-Addl. Chief Judge, City Civil Court, Secunderabad dismissed I.A.Nos.2042 & 2041 of 2010 and as against the said orders CRP Nos.4843 and 5064 of 2012 respectively have been filed.

So far as O.S.No.149 of 2003 is concerned, the petitioner filed I.A.No.1269 of 2010 for condonation of the delay and the same was dismissed by the learned III-Senior Civil Judge, City Civil Court, Secunderabad, by order dated 15.02.2013. Against the said order CRP No.2809 of 2013 came to be filed.

I have heard the learned counsel for both the parties and perused the material available on record.

As could be seen, there is inordinate delay of about 2500 days i.e., more than 6 years in all the suits in filing the applications for setting aside the ex parte decrees. By the orders under Revision, the Courts below dismissed the applications for condonation of the said delay holding that no valid grounds were made out to condone the inordinate delay.

Therefore, the only question that requires consideration by this Court in these revision petitions is whether the orders under Revision suffered from any error of jurisdiction warranting interference by this Court.

As noticed above, the revision petitioner is the defendant No.4 in all the three suits. Admittedly summons were served on him in all the suits. However, he was set ex parte on the ground of non-appearance and failure to file the written statement.

The contents of the affidavits filed in support of the applications explaining the delay in seeking to set aside the ex parte decrees in all the three suits is almost identical. The sum and substance of the explanation offered is as under:

After receiving the suit summons in the suits he gave his vakalat to his advocate by name Kannayyalal to contest the same and that he was a heart patient for the last 8 years and underwent 'Heart Stent Operation' in the Apollo Hospital in Banjara Hills on 6.8.2009 and the doctors advised him to take rest and that he was assured by his advocate that nothing would happen in the pending suits and advised him to look after his health. However, when he received summons in E.P. No.124 of 2006 in O.S. No.149 of 2003 immediately he approached his advocate who took his signatures on the vakalat and assured that he would take care of the said matter as well as the other two suits namely O.S.No.24 of 2003 and O.S.No.26 of 2003. Subsequently, summons were received in E.P.No.32 of 2008 in O.S.No.24 of 2003 and E.P.No.33 of 2008 in O.S.No.26 of 2003. Again he approached his advocate and signed the vakalats for filing in the E.Ps. He was advised by his advocate that there was nothing to worry since he did not avail the loan from the plaintiff company. Thereafter, when he went to the office of his advocate and enquired about his cases, he was told that he has to approach the High Court as the cases went against him. He also gave no objection on vakalats so as to enable the petitioner to engage some other advocate. Then the petitioner engaged another advocate and on enquiry it was found that ex parte decrees were passed in all the three suits on 18.8.2003 and 5.12.2003 and in pursuance thereof execution petitions were filed by the plaintiff/decree-holder for attachment of the immovable property belonging to the petitioner. It was also pleaded that he got fair chances to succeed and therefore it is necessary to set aside the ex parte decree.

The plaintiff filed counters opposing the petitions for condonation of delay and contending that the petitions are not bona fide.

By the orders under Revision, the Courts below dismissed all the applications holding that the affidavit itself shows that though the petitioner was very much aware of the suit proceedings from the beginning, he did not bother to appear before the Court and ultimately the applications for setting aside the ex parte decrees came to be filed when the property was brought to sale in execution of the decrees. Thus, it was held that there was gross negligence on the part of the petitioner in prosecuting the suits. Accordingly, all the petitions were dismissed.

Assailing the orders under Revision, it is vehemently contended by the learned counsel for the petitioner that the Courts below failed to take into consideration the fact that the petitioner was suffering from heart ailment and underwent a surgery. It is also contended that the orders under Revision are contrary to the settled principle of law that a liberal approach should be adopted while dealing with the petitions for condonation of delay filed under Section 5 of the Limitation Act.

In support of his submissions, the learned Counsel relied upon COLLECTOR, LAND ACQUISITION, ANANTNAG v. KATIJI (AIR 1987 SC 1353), RAM NATH SAO v. GOBARDHAN SAO (AIR 2002 SC 1201), J. KUMARADASAN NAIR v. IRIC SOHAN (AIR 2009 SC 1333), ORIENTAL AROMA CHEMICAL INDUSTRIES LTD. v. GUJARAT INDUSTRIAL DEVELOPMENT CORPN (2010) 5 SCC 459). and IMPROVEMENT TRUST v. UJAGAR SINGH (2010) 6 SCC 786).

That apart, placing reliance upon POSTMASTER GENERAL v. LIVING MEDIA INDIA LTD. (2012) 3 SCC 563) the petitioners filed applications in all the revision petitions to permit them to file better affidavits explaining the reasons for the delay. In the said affidavits it is stated that the plaintiff approached the Court with unclean hands and that the decree was vitiated by fraud. Therefore, it is pleaded that such a decree can be thrown out summarily at any stage of the proceedings. It is also sought to be explained that the petitioner and his advocate came to know about the ex parte decrees only on 22.7.2010 when they verified the records and within 12 days from the date of the knowledge applications were filed on 4.8.2010 for setting aside the ex parte decrees.

In support of his submission that the delay may be condoned since the decrees are vitiated by fraud, the learned counsel for the petitioner relied upon S.P. CHENGALVARAYA NAIDU v. JAGANNATH (AIR 1994 SC 853).

On the other hand the learned counsel for the 1st respondent sought to justify the orders under revision placing reliance upon MANIBEN DEVRAJ SHAH v. MUNICIPAL CORPN. OF BRIHAN, MUMBAI (2012) 5 SCC 157) and B. MADHURI GOUD v. B. DAMODAR REDDY (2012) 12 SCC 693).

There can be no dispute about the settled principle of law that the length of delay is no matter, but the acceptability of the explanation is only the criterion while considering an application under Section 5 of the Limitation Act. It is also a well-settled principle of law that the expression 'sufficient cause' must be given liberal construction so as to advance substantial justice to the parties and to decide the dispute on merits. However, the law is equally well-settled that where the delay is on account of gross negligence or deliberate inaction or lack of bona fides 'sufficient cause' cannot be said to be made out within the meaning of Section 5 of the Limitation Act.

In the instant cases, the petitioner himself pleaded that he received the notices in the execution petitions which were filed in the year 2006 and 2008. Therefore, the petitioner can be safely attributed knowledge of the decrees in the year 2006 and 2008 itself. However, the applications for setting aside the ex parte decrees came to be filed only in the year 2010. Thus, even from the receipt of notices in the execution petitions there is inordinate delay. In the affidavits filed in support of the applications for condonation of delay it was merely pleaded that after receiving the notices in the execution petitions he approached his advocate and signed the vakalats. Apparently the said vakalats were for contesting the execution petitions and nothing was mentioned in the affidavits as to the reasons which prevented him at that stage from taking steps for setting aside the ex parte decrees. Though it was pleaded that subsequently he engaged a new advocate and on verification of records he came to know about the ex parte decrees, the affidavits were absolutely silent about the date on which he engaged the new advocate and the date on which he came to know about the ex parte decrees.

In the additional affidavits filed now before this Court it is sought to be contended that he came to know about the ex parte decrees only on 22.7.2010 and immediately within 30 days the applications were filed for setting aside the ex parte decrees. On the face of it, the plea taken in the additional affidavits is an afterthought and nothing but an attempt to make out a case that the applications for setting aside the ex partedecreeswere filedwithin 30 days from the date of the knowledge. Reliance placed upon by the learned counsel for the petitioner on POSTMASTER GENERAL’S case (6 supra) to substantiate his contention that it is permissible to explain the delay by filing a better affidavit before this Court is misplaced.

The permission granted by the Apex Court in POSTMASTER GENERAL’S case (6 supra) to file a better affidavit explaining the reasons was in the peculiar facts and circumstances existing in the said case and no principle of law appears to have been laid down to take it as a precedent. Be that as it may, even if the contents of the additional affidavits filed before this Court are taken into consideration it appears to me that there was inaction, indifference and casualness in the approach of the petitioner at all points of time. Having carefully gone through the affidavits filed by the petitioner, I am of the opinion that the explanation offered before the Courts below was extremely vague whereas the explanation now sought to be offered before this Court by filing an additional affidavit is not at all convincing and does not appear to be credible.

As held in B. MADHURI GOUD’S case (9 supra), the Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties, but to ensure that they approached the Court for vindication of their rights without unreasonable delay. The idea of underlying concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the Legislature. At the same time the Courts are empowered to condone the delay provided sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation.

In this context, it would be useful to refer to the observations made by the Supreme Court in MANIBEN DEVRAJ SHAH’S case (8 supra):

23. What needs to be emphasized is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.

24. What colour the expression 'sufficient cause' would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on th

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e part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. As noticed above, the Courts below on proper appreciation of the material available on record held that the petitioner failed to offer satisfactory explanation for the inordinate delay and valid reasons were assigned in arriving at the said conclusion. I do not find any justifiable reason to interfere with the said findings of fact recorded by the Courts below. Even otherwise having regard to the legal position noticed above and in the totality of the facts and circumstances of the case, I am also of the opinion that this is a case of gross negligence and deliberate inaction which cannot be construed as sufficient cause within the meaning of Section 5 of the Limitation Act. Therefore, the orders under Revision which do not suffer from any material irregularity in exercise of jurisdiction warrant no interference by this Court on any ground whatsoever. Hence, all the Civil Revision Petitions are dismissed. No costs. Consequently the miscellaneous petitions, if any, pending in these Civil Revision Petitions shall stand closed.
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