Sec.5 of Limitation Act - delay 502 days - non - representation of counsel is a valid ground .. January 26, 2014 at 4:24am Sec.5 of Limitation Act - delay 502 days - non - representation of counsel is a valid ground to condone the delay and to allow the set aside exparte decree application filed after receiving E.P. notices - Lower court allowed on costs of Rs. 5000/- High court confirmed the order of lower court and dismissed the revision In the affidavit filed in support of IA.No.826 of 2011, the defendantscontended that they had engaged a counsel by name V. Srinivas ofBhongir on their behalf and instructed him to conduct the case on their behalf;that written statement was also filed in 2007; that 2nd defendant was lookingafter the proceedings in the suit on behalf of other defendants by contactingtheir counsel; that their counsel informed the defendants that he would lookafter the case and inform them as and when their presence was required;suddenly on 29.07.2011, notices were received in EP.No.21 of 2011 by them asking them to attend the court on 19.08.2011 along with copy of the EP which indicatedthat a decree was passed on 02.03.2010 against them; that the counsel avoided tocontact them; later they verified through another counsel and came to know thatthey had been set ex parte on 17.02.2010 as the counsel did not represent the matter and an ex parte decree was passed. They contended thaton account of their earlier counsel not informing them about the proceedings inthe suit, the ex parte decree came to be passed and the same be set aside aftercondoning the delay in filing the application to set aside the ex parte decree. =By order dt.05.08.2013, the court below allowed IA.No.826 of 2013. It heldthat although the defendants had filed a written statement and contested thematter, their counsel did not represent the case on 17.02.2010; therefore, theywere set ex parte on that day; that the counsel for defendants also did notcross-examine the plaintiff and ex parte decree was passed on 02.03.2010; thatvaluable rights of the defendants were involved in the matter and they cannot becondemned unheard, although their counsel did not defend them. It therefore,held that defendants should be given an opportunity to contest the matter andthe delay of 502 days can be condoned on payment of costs of Rs.5,000/- toplaintiff.= I am of the view that the court below had correctly exercised itsdiscretion in condoning the delay of 502 days in filing the application to setaside the ex parte decree on payment of costs of Rs.5,000/- to therespondent/plaintiff.20. In this view of the matter, I am not inclined to interfere with the impugnedorder. Therefore, the Civil Revision Petition is dismissed. 2014 ( JANUARY - VOL - 1 ) JUDIS.NIC.IN/ JUDIS _ ANDHRA / NAME OF FILE = 10711 THE HONBLE SRI JUSTICE M.S.RAMACHANDRA RAO CRP.No.4674 of 2013 03-01-2014 R.Krishna alias Kistaiah, S/o. Late R. Agamallaiah,R/o.Neredmet,Secunderabad....Petitioner/Respondent/Plaintiff R. Bala Narasaiah (died) per LRs(petitioner Nos.5 to 10) andothers....Respondents/Petitioners/Defendants Counsel for the Petitioner/ Respondent/Plaintiff:Sri Ch. Siddhartha Sarma Counsel for the Respondents/Petitioners/Defendants: Sri K. Goverdhan Reddy >HEAD NOTE: ?Cases referred: 1. AIR 1987 SC 1353 2. (1998) 7 SCC 1233. (2005) 3 SCC 7524. 2013 (6) ALT 237 The Court made the following : [order follows] THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO CRP.No.4674 of 2013 ORDER: This Revision is filed challenging the order dt.05.08.2013 in IA.No.826 of2011 in OS.No.131 of 2006 of the Senior Civil Judge, Bhongir.2. The petitioners herein are defendants in the above suit. The suit was filedfor specific performance of an agreement of sale dt.09.10.2005 allegedlyexecuted by defendant Nos.1 to 3 in favor of the respondent/plaintiff. Thedefendants filed a written statement but remained ex parte and did not leadevidence. The suit was decreed ex parte on 02.03.2010.3. IA.No.826 of 2011 was filed by the defendants under Section 5 of theLimitation Act, 1963 to condone the delay of 502 days in filing an applicationunder Order IX Rule 13 CPC to set aside the ex parte decree dt.02.03.2010. They also filed another IA under Order IX Rule 13 CPC to set aside the said decree.4. In the affidavit filed in support of IA.No.826 of 2011, the defendantscontended that they had engaged a counsel by name V. Srinivas ofBhongir on their behalf and instructed him to conduct the case on their behalf;that written statement was also filed in 2007; that 2nd defendant was lookingafter the proceedings in the suit on behalf of other defendants by contactingtheir counsel; that their counsel informed the defendants that he would lookafter the case and inform them as and when their presence was required;suddenly on 29.07.2011, notices were received in EP.No.21 of 2011 by them asking them to attend the court on 19.08.2011 along with copy of the EP which indicatedthat a decree was passed on 02.03.2010 against them; that the counsel avoided tocontact them; later they verified through another counsel and came to know thatthey had been set ex parte on 17.02.2010 as the counsel did not represent the matter and an ex parte decree was passed. They contended thaton account of their earlier counsel not informing them about the proceedings inthe suit, the ex parte decree came to be passed and the same be set aside aftercondoning the delay in filing the application to set aside the ex parte decree. 5. Counter-affidavit was filed by the plaintiff/respondent opposing the aboveapplication contending that the allegations made by the defendants cannot bebelieved; that the plaintiff had filed his affidavit in lieu of chief-examination on 15.09.2009 and the suit was decreed only on 02.03.2010; thatdefendants did not explain why they did not approach their counsel during thisperiod; by blaming their counsel, the defendants cannot get away with theinordinately long delay of 502 days in filing the application to set aside theex parte decree. The plaintiff therefore prayed that IA.No.836 of 2011 filed bythe defendants be dismissed. 6. By order dt.05.08.2013, the court below allowed IA.No.826 of 2013. It heldthat although the defendants had filed a written statement and contested thematter, their counsel did not represent the case on 17.02.2010; therefore, theywere set ex parte on that day; that the counsel for defendants also did notcross-examine the plaintiff and ex parte decree was passed on 02.03.2010; thatvaluable rights of the defendants were involved in the matter and they cannot becondemned unheard, although their counsel did not defend them. It therefore,held that defendants should be given an opportunity to contest the matter andthe delay of 502 days can be condoned on payment of costs of Rs.5,000/- toplaintiff. 7. Challenging the same, this Revision is filed by the plaintiff.8. Heard Sri P. Venugopal, counsel for Ch.Siddharth Sharma, counsel for thepetitioner/plaintiff and Sri K. Goverdhan Reddy, counsel for the respondentNos.2 to 10.9. The counsel for petitioner contended that the defendants were negligent incontesting the suit after having filed the written statement; that they did notexplain day-to-day delay; that the court below, without stating that it issatisfied that sufficient cause has been shown by the defendants in explainingthe delay in filing the application under Order IX Rule 13 CPC, could not havecondoned the delay. He also contended that the defendants failed to avail theopportunity of contesting the suit and therefore no indulgence can be shown tothem in the matter.10. The counsel for the respondent on the other hand contended that thedefendants had given valid reasons for condoning the delay in filing theapplication under Order IX Rule 13 CPC; that the court below rightly condonedthe said delay on payment of costs; that the defendants had relied on theircounsel to inform them about the proceedings in the suit, but he did not informthem and the negligence/inaction of their counsel cannot be ignored and thedefendants cannot be made to suffer for it. He also contended that the suitrelates to specific performance of an agreement of sale of valuable land and thedefendants be allowed to contest the suit on merits as the plaintiff wasadequately compensated by the trial court by imposing costs of Rs.5000/-. Healso cited the decisions in Collector, Land Acquisition, Anantnag and another v.Mst. Katiji and others1, N. Balakrishnan v. M. Krishnamurthy2,State of Nagaland v. Lipok AO and others3 and Bavisetty Jagganna Dora (died) perLRs v. Somi Estates and Housing (P) Ltd.4. 11. I have noted the submissions of both sides. 12. In the present case, the suit was filed in 2006 for specific performance ofan agreement of sale in respect of 3/4 th share in valuable land of extentAcs.9.16 guntas in Medipally Village, Bommalaramaram Mandal, Nalgonda District by the petitioner/plaintiff against the respondents/defendants. The defendantshad engaged a counsel by name V. Srinivas of Bhongir and through him filed awritten statement in 2007. Thereafter, according to the defendants, theircounsel, having promised to let them know as and when their participation in thesuit is necessary, did not do so; consequently, they were set ex parte on17.02.2010 and an ex parte decree was passed on 02.03.2010. IA.No.826 of 2011was filed on 16.08.2011 to condone the delay of 502 days in filing the petitionunder Order IX Rule 13 CPC to set aside the said ex parte decree. 13. The point for consideration is whether the defendants had shown sufficient cause for condonation of the above delay ? 14. In Collector, Land Acquisition, Anantnag (1 supra), cited by the counsel forrespondents/defendants, the Supreme Court held that the power to condone delayby enacting Section 5 of the Limitation Act, 1963 is to enable the courts to dosubstantial justice to parties by disposing of matters on merits; that theexpression sufficient cause employed by the Legislature is adequately elasticto enable the courts to apply the law in a meaningful manner which serves theends of justice which is the life purpose for the existence of the institutionof courts; substantial justice deserves to be preferred as against technicalconsiderations; and the courts should prefer to deliver justice on merits inpreference to the approach which scuttles a decision on merits.15. In N. Balakrishnan (2 supra), an application to set aside an ex parte decreedt.28.10.1991 for declaration of title and ancillary reliefs was dismissed bythe trial court on 17.02.1993. It also dismissed for default an applicationfiled on 19.08.1995 to condone delay of 883 days in setting aside the orderdt.17.02.1993. The appellate before the Supreme Court, who had filed the saidapplications, contended that the advocate engaged by him failed to inform himabout the dismissal of the application on 17.02.1993 and that he came to know ofthe same only on 05.07.1995 when he received summons from the Executing Court; that he went to the same advocate and gave Vakalatnama and signed papers forresisting execution proceedings, but the advocate did not do anything; and thatthe trial court had erred in dismissing the applications filed by him. TheSupreme Court held that the appellants conduct does not on the whole warrant tocastigate him as an irresponsible litigant and what he did in defending the suitwas not very much far from what a litigant would broadly do; that although hecould have been more vigilant, during these days when everybody is fullyoccupied with his own avocation of life, an omission to adopt such extravigilance cannot be used as a ground to depict him as an irresponsible litigantand visit him with drastic consequences. It held : 9. It is axiomatic that condonation of delay is a matter of discretion of thecourt. Section 5 of the Limitation Act does not say that such discretion can beexercised only if the delay is within a certain limit. Length of delay is notmatter, acceptability of the explanation is the only criterion. Sometimes delayof the shortest range may be uncondonable due to a want of acceptableexplanation whereas in certain other cases, delay of a very long range can becondoned as the explanation thereof is satisfactory. Once the court accepts theexplanation as sufficient, it is the result of positive exercise of discretionand normally the superior court should not disturb such finding, much less inrevisional jurisdiction, unless the exercise of discretion was on whollyuntenable grounds or arbitrary or perverse. But it is a different matter whenthe first court refuses to condone the delay. In such cases, the superior courtwould be free to consider the cause shown for the delay afresh and it is open tosuch superior court to come to its own finding even untrammelled by theconclusion of the lower court.... ... ... 13. It must be remembered that in every case of delay, there can be some lapseon the part of the litigant concerned. That alone is not enough to turn downhis plea and to shut the door against him. If the explanation does not smack ofmala fides or it is not put forth as part of a dilatory strategy, the court mustshow utmost consideration to the suitor. But when there is reasonable ground tothink that the delay was occasioned by the party deliberately to gain time, thenthe court should lean against acceptance of the explanation. While condoningthe delay, the court should not forget the opposite party altogether. It mustbe borne in mind that he is a loser and he too would have incurred quite largelitigation expenses. It would be a salutary guideline that when courts condonethe delay due to laches on the part of the applicant, the court shall compensatethe opposite party for his loss. 16. In State of Nagaland (3 supra), the Supreme Court followed the abovedecision and after referring to other cases on the issue, held that when Stateis a litigant, it is not impermissible to show some latitude to it and it cannotbe put on the same footing as an individual, since the State has to operatethrough impersonal machinery.17. In Bavisetty Jagannadora (4 supra),this Court held that reasons have to berecorded by the trial court in considering an application for condonation ofdelay in filing an application to set aside an ex parte decree under Order IXRule 13 CPC and a cryptic order, without giving reasons, cannot be sustained.18. Keeping in view the above decisions, I am of the opinion that the facts ofthe present case are somewhat similar to those in N.Balakrishnan (2 supra). Like in that case, here also the defendants had engageda counsel by paying him fee and through him had filed a written statement in2007 itself. Proceedings in the suit admittedly dragged on and on 17.02.2010,the defendants were set ex parte due to non-appearance of their counsel.According to the defendants, the counsel had told them that he would call themas and when their presence is required. Unfortunately, he did not appear tohave contacted the defendants and informed them about the proceedings in thesuit, after filing of the written statement. I see no reason to disbelieve theplea of the defendants that they had waited bonafidely, believing that thecounsel would inform them about the proceedings in the suit. Of course, theycould have been more vigilant and could have visited the advocate at shortintervals to check up the progress of litigation, but as observed by SupremeCourt in N. Balakrishnan (2 supra), omission to adoptsuch extra vigilance, cannot be allowed to visit a litigant with drasticconsequences and depict him as an irresponsible litigant, when he did take stepsto engage a counsel to defend him in the suit. As rightly observed by theSupreme Court, length of delay is no matter but acceptability of the explanationis the only criterion. I am satisfied that the defendants had made outsufficient cause for condonation of the delay in filing the application to setaside the ex parte decree and that they deserve a chance to contest the suit onmerits. 19. I am of the view that the court below had correctly exercised itsdiscretion in condoning the delay of 502 days in filing the application to setaside the ex parte decree on payment of costs of Rs.5,000/- to therespondent/plaintiff.20. In this view of the matter, I am not inclined to interfere with the impugnedorder. Therefore, the Civil Revision Petition is dismissed. No costs.However, since the suit is an old suit of the year 2006, both parties shall co-operate with the expeditious disposal of the suit and the trial court shallendeavour to dispose it of within six (6) months from the date of receipt of acopy of this order.21. Miscellaneous applications pending, if any, in this Civil Revision Petitionshall stand closed
Posted on: Tue, 09 Sep 2014 15:46:55 +0000
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