Abdul Jabbar vs S.N.A. Nazarath

The revision petitioner assails the order dated 8-2-1999 passed by the learned HI Junior Civil Judge, City Civil Court, Hyderabad, in IA No.1013 of 1997 in OS No.4297 of 1989. He filed the petition in IA No.1 013 of 1997 u/s 5 of the Limitation Act seeking condonation of delay of 1198 days in filing an application to set aside the ex parts decree dated 9-11-1993 passed in OS No.4297 of 1989. In the affidavit filed in support of the petition he mentioned inter alia that the suit OS No.4297 of 1989 was fifed by the respondent herein for perpetual injunction. He put in his appearance through his Counsel Sri Rajiv Indani and the matter was coming up for filing the written statement. Unfortunately his Counsel did not attend the matter and therefore he was set ex parte and an ex parte decree was passed on 9-11-1993. He is a businessman staying away from Hyderabad and as such he did not know the exact procedure to be followed before the Court. He came to know about the ex parte decree in 1995 and therefore he filed an application dated 18-11-1995 seeking to set aside the ex parte decree through his general power of attorney holder in IA No.2116 of 1995. The Court below refused to grant permission to his agent u/s 32 of the Civil Rules of Practice on some technical grounds, and therefore, that application was ultimately rejected on 22-12-1995. The petitioner came to know of the same on 9-10-1996 and filed the present petition.

The respondents herein resisted that application by filing a counter on the premise that there had been deliberate delay in filing the present petition and as the decree was implemented by filing an execution petition, the present petition is liable to be dismissed.

At the time of enquiry, one Mr. Syed Abdullah Rauf the general power of attorney holder of the petitioner was examined as PW1. None was examined on the side of the respondent. No documents were filed on either side. The Court below upon considering the evidence, dismissed the petition holding that there had been laches on the part of the petitioner in prosecuting the suit with due diligence and he could not show sufficient cause for condoning the delay.

Having been aggrieved by the same, the petitioner filed the present revision petition.

The learned Counsel for the revision petitioner contends that there has been no rebuttal evidence on the side of the respondents, and therefore, the evidence of PWI shall have to be accepted. The learned Counsel further contends that the petition filed by the petitioner in IA No.1042 of 1998 seeking permission of the Court to direct the deponent of the counter-affidavit i.e., respondent herein permitted to be cross-examined and that was dismissed thereby denying opportunity. The learned Counsel further contends that the suit must fail inasmuch as the respondent herein who filed the suit played fraud upon the Court and filed the suit on the foot of an irrevocable general power of attorney after interpolating his name therein.

The respondent appeared in person and contended that the decree having been executed there remains nothing and the revision petition, therefore, has become infructuous. He further contended that the delay was enormous and there was no sufficient cause to condone the delay.

In view of the respective contentions, this Court has to see whether the revision petitioner has shown sufficient cause to condone the delay of 1198 days.

The suit was filed by the respondent herein for perpetual injunction against the revision petitioner herein on the ground that the defendant having executed a deed of a contract in favour of the plaintiff in respect of Ac.3-05 gts. of land in Plot No.7 on Road No.2, Banjara Hills, Hyderabad, empowering and authorising the plaintiff to sell the said land to any prospective purchasers after getting the encroachers thereon evicted and having delivered possession simultaneously,'' but when the land was developed by the plaintiff after getting the encroachers evicted there from the defendant started interfering with the possession of the plaintiff through his relatives with a mala fide intention. That suit was coming up for filing written statement of the defendant, but for the default on the part of the defendant in filing the statement it was decreed ex parte. It is now the plea of the revision petitioner who is the defendant therein that he never executed any irrevocable power of attorney in favour of the plaintiff. Obviously the revision petitioner is the owner of the land, which is the subject matter of that suit. The respondent herein, who is the plaintiff in the suit, claims possession of that land under a deed of contract said to have been executed by the revision petitioner i.e., irrevocable power of attorney. But the revision petitioner contends that he never executed any irrevocable general power of attorney in favour of the respondent and the respondent got his name interpolated in irrevocable general power of attorney executed by him in favour of his agent by name Mr. Syed Abdullah Rauf.

Whatever may be the respective contentions of the parties to the suit OS No.4297 of 1989 that there has been no dispute in regard to the fact that the revision petitioner is not a resident of Hyderabad and he executed a general power of attorney in favour of Mr. Syed Abdullah Rauf to defend the suit on his behalf. Substantial rights over the property measuring about Ac.3-05 guntas in Plot No.7 on Road No.2, Banjara Hills, Hyderabad, are involved in the suit. In this backdrop it is to be seen as to whether the petitioner has been able to show sufficient cause for the condonation of the delay.

Period of delay is not the criterion. Neither the fact that the period of delay was enormous, nor the fact that it was a short period would legitimately tilt the scales. Undaunted and unperturbed by the period of delay the Courts shall proceed to consider the sufficient cause. In other words, the Court shall not be prejudiced by the fact that the delay was enormous, nor it should lean in favour of the sufficient cause, as the delay was short. The Court should proceed to consider the sufficient cause independent of either of these two cases, keeping in view the substantial justice to be done in the matter to the parties. No straightjacket formula can be laid down with reference to which the sufficient cause can be considered by the Courts of law. Each case has to be seen with reference to the peculiar facts of that case. What the Courts have to ultimately see is as to whether the petitioner who is seeking leave of the Court for condonation of delay is guilty of any wanton negligence and is trying to adopt any dilatory tactics. In the absence of any such considerations, the Court has to consider the substantial justice, inasmuch as it is always expedient to dispose of the lis by effectively adjudicating the same with reference to the evidence adduced on record and the litigation cannot be decided at the threshold in the absence of either one of the parties thereto. Guidelines have been broadly laid down by the Apex Court in this regard in the Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, ; Ramegowda v. Special Land Acquisition Officer, Bangalore AIR 1988 SC 899 and N. Balakrishnan Vs. M. Krishnamurthy, . A Division Bench of this Court considering the former two judgments of the Apex Court and some other judgments of the said Court held in Land Acquisition Officer-cum-Special Deputy Collector (L.A.) v. Annam Reddi Musilithalli 1995 (5) ALT 74 (DB), that inaction or lapse in the cases not attributable to any deliberate design or indifference on the part of the officers of State cannot be a ground for refusing to exercise discretion by the Courts and the expression ''sufficient cause'' in Section 5 of Limitation Act must receive liberal construction to advance substantial justice. Although that case pertains to the delay on the part of the State in not filing the appeal, the ratio involved therein is obvious, where the impugned judgment of the trial Court proceeded on some wrong assumptions in having granted compensation to the trees and well separately, the Bench of this Court has ultimately considered the substantial justice involved in the matter and has proceeded to condone the delay. The period of delay involved in the said judgment is 519 days. Ultimately the Court while exercising its discretion u/s 5 of the Limitation Act has to see the substantial justice involved in the matter and shall proceed to consider the sufficient cause so as to sub-serve the ends of justice. Mere delay or inaction of the parties is not sufficient, but it shall be a deliberate and calculated one with a mala fide intention.

In the instant case, the revision petitioner is obviously the owner of the plot. The respondent herein is claiming possession of the same under a contract empowering him to sell the land to any prospective purchaser, the genuineness or otherwise of which is under consideration, having been disputed by the petitioner. Obviously, he was appearing through his general power of attorney holder, but not personally. Therefore, the inaction or lapse per se cannot be attributed to him in the first instance. Here is a case where oral evidence has been adduced on the side of the petitioner by examining the deponent of the affidavit filed in support of the petition who is the general power of attorney holder of the petitioner. He filed another application seeking to cross-examine the deponent of the counter-affidavit who is no other than the respondent herein. That application has been rejected on the ground that is germane for consideration only in the suit, but not in the application filed u/s 5 of the Limitation Act. There has been no rebuttal evidence on the side of the respondents. These facts have not been able to tilt the scales in favour of the petitioner in the view of the Court below. What is obvious is that the petitioner has been denied an opportunity to cross-examine the respondent herein on some wrong assumplion of facts. I see every force in the contention of the learned Counsel that sufficient opportunity has been denied to the petitioner by the Court below. The contention of the respondent who appeared in person that the decree having been satisfied in execution, the revision petition has become in fructuous, cannot be countenanced inasmuch as the ex parte decree passed in the suit is for perpetual injunction and merely because the Police aid at his instance has been granted cannot automatically satisfy the decree. The finding given by the Court below that there is no sufficient cause to condone the delay has therefore been vitiated on account of the said cause. It is expedient in that view of the matter to remit the matter back to the lower Court for fresh consideration after giving opportunity to the parties to adduce evidence.

In the result, the revision petition is allowed and the impugned order is hereby set aside and the matter is remitted back to the Court below for fresh consideration, in accordance with law, and in the light of the observations made by this Court supra. However, the Court below should make every endeavour to dispose of the petition, as expeditiously as possible, in view of the fact that the suit was filed in the year 1993. In the circumstances, there shall be no order as to costs.