Eelaprolu Seshagiri Rao vs Garimala Sambasiva Rao

Dr V R K Krupa Sagar, J

O.S.No.74 of 2008 is a suit between a creditor and a debtor. The debt transactions commenced on 11.04.2001. By 15.03.2006 there emerged three promissory notes and multiple payment acknowledgments between the parties. Despite notices demanding repayment there was no discharge of the debt and that resulted in creditor suing the debtor. After due trial, learned I Additional District Judge, West Godavari at Eluru by a judgment dated 06.01.2012 adjudged the principals on due at Rs.3,59,000/- and with all the accumulated interest it swelled to Rs.14,23,968/- and accordingly, granted the decree in favour of the creditor for the said amount and awarded costs and interest pendente lite and post decree. Aggrieved debtor with 43 days delay preferred his appeal under Section 96 of Code of Civil Procedure (C.P.C.). On 29.11.2012 his application to condone 43 days delay was allowed and the appeal was registered. Since then it has been coming up for final hearing.

While so, the sole appellant- Sri E.Seshagiri Rao died on 01.10.2019. Soon thereafter it was expected that his legal representatives would come up seeking their impleadment as legal representatives and continue to prosecute the appeal. That did not happen. In such circumstances, the respondent who won the suit and obtained a decree having waited for a long time filed a memo on 15.12.2023 to enable the legal representatives to pursue the case. More than a month thereafter the wife and children of the deceased sole appellant came up with an application under Order XXII Rule 3 C.P.C. for their impleadment vide I.A.No.3 of 2024 and prayed for setting aside the abatement in terms of Order XXII Rule 9 C.P.C. vide I.A.No.2 of 2024 and sought condonation of 1420 days delay in preferring an application to set aside the abatement vide I.A.No.1 of 2024 under Section 5 of the Limitation Act. The respondent/plaintiff filed counters seriously disputing the facts narrated in the applications.

Smt. Sirisha, the learned counsel representing the applicants on behalf of Sri Sreenivasa Rao Velivela, the learned counsel on record and Sri C.Venkaiah, the learned counsel for the respondent submitted arguments.

The fact that sole appellant died and the proposed legal representatives are his wife and children are not in dispute. Serious objection of the respondent about the inordinate delay of 1420 days is the main focus of debate at the bar. Therefore, the point that falls for consideration is:

“Whether the proposed legal representatives have shown sufficient cause to condone 1420 days delay in seeking to set aside the abatement and in seeking permission for their impleadment as legal representatives?”

POINT:

The facts adverted to in the affidavit filed in support of the application furnished the following grounds as the cause of delay:

Applicants are not aware of the pendency of the present appeal. Therefore, they could not seek their impleadment soon after the death of appellant.

Recently they received notices from the executing Court at Nuzvid.

On receiving such notices from the executing Court they approached their advocate at Nuzvid and from him they came to know about the pendency of the appeal.

It is at that juncture they received information from their learned counsel in this appeal that the appeal was listed for hearing and then they informed the learned counsel about the death of sole appellant.

Thereafter the first applicant- Smt. E.Anantha Pushpavathi suffered ill-health and was admitted in hospital and could not approach their counsel immediately.

Then on the advice of their learned counsel they moved the present applications.

In the counter the following facts are urged:

That the proposed legal representatives have been fully aware of the pendency of this appeal and from the time of decree and after filing of the appeal and during the pendency of the appeal while the sole appellant was alive and even after his death this respondent has been approaching initially the sole appellant and thereafter his legal representatives to discharge the decree debt. Therefore, the contention of the proposed legal representatives that they were not aware of the pendency of the appeal is incorrect.

The facts alleged in the applications are vague as they failed to furnish any dates.

There is deliberate negligence and intentional delay so as to defeat the fruits of the decree obtained by the respondent.

There are no bona fides on part of the applicants.

Learned counsel for applicants submitted that while considering the applications for condonation of delays a liberal approach is to be adopted so as to permit the litigants to fight out their rights by way of contest.

Learned counsel for respondent argued that laws of limitation are not for violation and a liberal approach is only with reference to the length of the delay and always the Courts are expected to consider the facts stated and find out whether they furnished sufficient reason or not and in considering such facts misplaced benevolence has no place and that the delay defeats equity and Courts shall help vigilant and not the indolent. Learned counsel for respondent cited the following precedent:

Majji Sannemma alias Sanyasirao v. Reddy Sridevi 1 2021 SCC OnLine SC 1260.

Basawaraj v. The Spl. Land Acquisition Officer (2013) 14 SCC 81.

B.Prem Kishore v. Hyderabad Industries Ltd. 2023 (5) ALD 615 (TS)

Bandi Shanker v. Bandi Pochaiah 2023 (3) ALD 947 (TS).

From the rulings cited at the bar the undisputed principles are to be noticed. Courts are required to weigh the scales of balance of justice in respect of both parties and that principle cannot be given a total go by in the name of liberal approach. The Courts should be vigilant and not to expose the other side unnecessarily to face litigation raised on fanciful grounds. The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion founded on objective reasoning and not on individual perception. Gross negligence on the part of the litigant or the counsel shall be dealt with properly. The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. There is a distinction between inordinate delay and a delay of short duration, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted.

The facts presented before this Court are to be now seen in the light of the principles narrated above.

The facts stated in the affidavit shall be remarked as broad and vague – It is stated that they received notices from the executing Court. They failed to furnish the execution petition number, the date on which the notices were received. The widow of the deceased is stated to be experiencing ill-health and was admitted in hospital. The nature of illness, the period of illness, the date on which she was admitted in hospital, the date on which she was discharged from the hospital and the name of the hospital are not furnished. That the applicants are not aware of the pendency of the appeal is one of the causes stated. Transactions and litigations that have been pending since 2001 are normally known to the members of the family especially when the deceased and the applicants have been living together. Thus, it is clear that the applicants by their failure to disclose the necessary details have shown to the Court that they have not been bona fide and the delay is wanton depriving the party on the other side to endure the sufferance for certain more time. The facts disclosed before this Court cannot be said to offer a satisfactory cause to condone the inordinate delay of more than four years. In these circumstances, this Court finds no reason to condone the delay. Hence, the point is answered against the applicants.

In the result, these Applications are dismissed and consequently, the Appeal stands dismissed as abated. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall stand closed.