G Sriramulu vs K.Venkateshwar And Another

The revision petition is directed against the order dated 8.09.2017 passed in I.A.No.151 of 2017 in I.A.No.353 of 2008 in O.S.No.1311 of 1999 on the file of the learned I Senior Civil Judge, City Civil Court, Hyderabad.

Mr.M.Amarnath-plaintiff-second respondent herein filed suit in O.S.No.1311 of 1999 against Mr.G.Sriramulu-petitioner-defendant herein seeking specific performance of the agreement of sale and a direction to the defendant to execute the registered sale deed in favour of the plaintiff in respect of the suit schedule property after receiving the balance sale consideration. The petitioner herein filed an application in I.A.No.151 of 2017 in I.A.No.353 of 2008 under Section 5 of the Limitation Act, 1963 seeking to condone the delay of 188 days in filing a petition to set aside the order dated 12.12.2008 passed in I.A.No.353 of 2008 stating that due to medical and financial problems he along with his family were struggling for existence, he left Hyderabad in search of employment and as such he was unable to defend and give instructions to his counsel and thus an ex parte decree was passed and in his absence his wife through his General Power of Attorney got settled all the cases except the present one. On 29.09.2011 he filed an application to set aside the ex parte decree dated 26.11.2005 along with delay petition through his GPA holder vide I.A.No.1740 of 2011 in O.S.No.1311 of 1999. As he could not pay the fees, he was compelled to take on objection vakalat from Mr.B.Shankar, Advocate, and engaged another counsel. Later in E.P.No.71 of 2010 Mr.B.Shankar, Advocate, was engaged on 11.08.2016 after improving his financial status and came to know that the deed of assignment was executed on 24.09.2007 in favour of first respondent herein vide order in I.A.No.363 of 2008 in O.S.No.1311 of 1999. The petitioner herein would assert that as per Order 21 Rule 16 CPC, notice to the judgment debtor is mandatory. He obtained certified copies of the assignment deed, notice, memo and docket orders passed in I.A.No.353 of 2008 in the suit on 23.08.2016. As he was working in marketing line and was not in Hyderabad, he was unable to give instructions to file set aside petition against the orders dated 12.12.2008 passed in I.A.No.353 of 2008 immediately. He extracted the docket proceedings and stated that on 18.07.2008 notice was issued to the counsel on record i.e., Mr.K.Jagathpal Reddy, Advocate, and he filed a memo dated 23.11.2005 stating that he reported no instructions from the defendant. But the trial Court observed that notice was given to the counsel on record to the effect that ‘Memo filed by the Defendant Counsel reported no instruction from the Defendant, hence for the Judgment call on 25.11.2005’ and made an endorsement to send notice to the party, it was not served upon him and as such he requested the Court to condone the delay.

In a counter filed by the first respondent, he stated that I.A.No.1740 of 2011 was filed to condone the delay of 2124 days to set aside the decree, but it was dismissed on 18.04.2016 with costs of Rs.2003/-. Against which the petitioner herein filed C.R.P.No.3263 of 2016 before this Court and it was dismissed on 20.09.2016. He would further assert that the present application is filed only to thwart the due process of law and it amounts to estoppel and also barred as constructive res judicata under Section 11 CPC. I.A.No.1740 of 2011 is filed in September 2011 and thus the petitioner has knowledge of the order passed on 21.09.2011 in I.A.No.353 of 2008 and as such calculating the period from 11.08.2016 is not maintainable and he has not explained the reasons for the inordinate delay of 1800 days in filing the present application. He would also assert that the petitioner herein is in the habit of changing the Advocates. He initially he engaged Mr.Jagathpal Reddy, Advocate, to prosecute the suit and then he appointed one Mr.B.Shankar, Advocate, for filing I.A.No.1740 of 2011 and thereafter taken no objection from him and engaged Mr.Shaik Iqbal Pahsa, Advocate, to contest the application. After dismissal of the application, the petitioner once again taken no objection from Mr.Shaik Iqbal Pasha, Advocate, and engaged Mr.B.Shankar in filing the present application. The petitioner appointed his son and wife as power of attorney holders to represent certain other matters. He would also submit that the allegation made by the petitioner that creation of assignment deed is false, whereas it is a registered one and is a public document available for general public. The petitioner has to explain the inordinate delay in filing the present application from 2011 to 2016 i.e. more than five years, instead, he simply stated that he went to USA and could not follow up the matter.

The petitioner also filed rejoinder to the said counter on 06.06.2017.

The trial Court after considering the arguments of both the counsel at length, dismissed the application by observing that at one point of time the petitioner stated that he was struggling financial difficulties and in another point he went to USA and the petitioner cannot approbate and reprobate at the same time. The trial Court has extracted the details of the Advocates changed by the petitioner during the pendency of the proceedings.

It was observed that O.S.No.1311 of 1999 was filed by the plaintiff against the petitioner herein for specific performance of agreement of sale dated 27.01.1993 in respect of the mulgi bearing No.4-5-61 admeasuring 420 square feet situated at Koti, Hyderabad, which was decreed on 26.11.2005 with a direction to deposit Rs.50,000/- being the balance sale consideration within one month and the defendant is directed to execute registered sale deed, but the decree holder assigned the decree in favour of the first respondent herein who filed I.A.No.353 of 2008 and it was allowed on 12.12.2008. As the petitioner herein filed I.A.No.1740 of 2011 for condoning the delay of 2124 of days to set aside the ex parte decree dated 26.11.2005 passed in O.S.No.1311 of 1999, he ought to have calculated the limitation period from 12.12.2008 but not from 23.08.2016. The affidavit filed in I.A.No.1740 of 2011 was sworn by the wife of the petitioner herein and it was argued by the same counsel. The trial Court observed that the petitioner herein had wrongly calculated the delay and committed fraud on the Court. Apart from that he filed false affidavit stating that he has knowledge about the order passed by the Court only from 23.08.2016, though he is aware of filing of I.A.No.1740 of 2011 through his wife and he has not explained the delay of more than five years. I.A.No.1740 of 2011 was dismissed on 18.04.2016 against which C.R.P.No.3263 of 2016 was filed and it was also dismissed on 20.09.2016. The trial Court in its order clearly observed that the petitioner wrongly calculated the delay of 188 days and thus the petition itself is misconceived and accordingly dismissed with costs of Rs.1000/-. Aggrieved by the same, the present revision is preferred.

Heard the learned counsel appearing for the petitioner and the learned counsel appearing for respondents.

Learned counsel for the revision petitioner would contend that notice was not given to the petitioner herein but wrongly mentioned that notice given and posted for counter. He would further contented that when notice was served on his counsel, he reported no instruction and instructed him to issue notice to the party, but even then it was not served upon the petitioner and therefore, he requested the Court to set aside the order under challenge.

The principles applicable to an application for condonation of delay are as follows:

(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

(ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

(vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

(viii) There is a distinction between inordinate delay and delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach where the second calls for a liberal delineation.

(ix) The conduct, behavior and attitude or a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

(xiv) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

(xv) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

(xvi) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

(xvii) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.

As per the record, O.S.No.3628 of 1995 is filed by one K.Krishna Murthy against the petitioner herein for recovery of an amount of Rs.34,400/- and it was decreed in favour of the plaintiff on 13.07.1999. The petitioner herein has entered into a compromise with the decree holder and to that effect memos were filed in E.P.No.4 of 2011 in O.S.No.3628 of 1995, in E.P.No.2 of 2011 O.S.No.3629 of 1995, in E.P.No.7 of 2011 in O.S.No.3630 of 1995, in E.P.No.3 of 2011 in O.S.No.3631 of 1995, in E.P.No.121 of 2011 in O.S.No.324 of 2001 and in E.P.No.6 of 2011 in O.S.No.3848 of 1995. Third party affidavit of one Ms.Ashwini was also filed in E.P.No.71 of 2010 in which she stated that when she contacted the petitioner and his wife over phone, both the phones were switched off and on enquiry she came to know that the petitioner is residing in USA and so also in the docket order dated 20.07.2011 it was observed that Mr.G.Shankar, brother of the sole judgment debtor, present in person and represented that the judgment debtor is in USA and the third party affidavit was also filed and as such the matter is posted to 24.08.2011 for taking steps. I.A.No.1740 of 2011 was filed by the wife of the petitioner stating to the effect that her husband is in USA with their daughter and requested the Court to condone the delay of 2124 days. Deed of Assignment dated 24.09.2007 was executed by Sri M.Amarnath against one K.Venkateswar and he stated that he filed O.S.No.1311 of 1999 and obtained decree on 26.11.2005 and thereafter he obtained a loan of Rs.3,00,000/- in the year 2000 and out of which a sum of Rs.50,000/- was deposited. As he could not repay the balance amount, he executed assignment deed in favour of the assignee towards due discharge of hand loan of Rs.3,00,000/-. Thereafter, as there were some mistakes crept in the assignment deed, rectification deed was executed on 03.01.2017.

Coming to the facts of the case, the plaintiff filed suit for specific performance against the petitioner herein and it was decreed on 26.11.2005. Initially the petitioner herein filed I.A.No.1740 of 2011 for condoning the delay of 2024 days to set aside the ex parte order and when it was dismissed, the petitioner herein filed I.A.No.353 of 2008 to condone the delay of 188 days by suppressing the orders of the Court in I.A.No.1740 of 2011. The conduct of the petitioner herein is to be ascertained in view of the suit filed by plaintiff for recovery of the amount and also in view of his compromise with the decree holder in several execution petitions. The petitioner herein himself stated that he was having financial problems and thus he could not pay the fees to engage the counsel and as such he could not contest the matter and he also changed several Advocates during the pendency of the proceedings and even during the pendency of the E.Ps. he was at USA and as such notice was not served upon him properly and he represented the matters by giving GPA to his wife and son. In this case he mainly contended that though his counsel reported no instructions, no notice was served upon him and though he is not a party to the assignment deed. He intended to challenge the said order by duly condoning the delay. It is for him to explain the delay properly and in fact it is for him to calculate the delay correctly. In the case on hand, the delay is not properly calculated and not explained properly at any point of time and as such I.A.No.1740 of 2011 was dismissed. For the very same reasons, he filed again I.A.No.353 of 2008 for condoning the delay of 188 days. The trial Court after considering all the factors into consideration at length and also the documents filed under Ex.P1 to P25 dismissed the application. When a suit is filed against the petitioner, it is for him to prosecute the same with due diligence, but he could not pursue the same for the reasons best known to him. The Court will not come to the rescue of the people who slept over the matter during the pendency of the proceedings and approached the Court at a belated point of time without there being any sufficient reason. For the reasons best known to the petitioner, he could not appear before the Court and though he engaged several counsel on record they could not represent the matter before the Court properly and finally came up with the delay condonation petitions which were dismissed by duly considering the reasons stated by both the parties.

There is no error apparent in the order under challenge and it is not perverse and the scope of revision is limited. Though petitioner stated that fraud was played upon him, he has not established the same. The entire proceedings clearly establish that the petitioner herein is negligent in pursuing the litigation and in fact he wilfully avoided to contest the matter, and as such he is not entitled for invoking a liberal approach in condoning the delay.

To the objection raised by the learned counsel for the petitioner that no notice was served upon the petitioner, a duty is caste upon him to be available in person or through counsel for receiving the notice sent by the Court when the matter is pending before it, and when he failed to do so, he cannot blame the Court and cannot take advantage of his own mistake and agitate before the Court that no opportunity was given to him.

In the light of the above discussion, the Civil Revision Petition is mischievous and it amounts to abuse of process of law and is liable to be dismissed. Accordingly, the civil revision petition is dismissed with costs of Rs.10,000/- payable to the Member Secretary, Telangana Legal Services Authority within one month from today.

Miscellaneous Petitions, if any, pending in this revision shall also dismissed in the light of this final order.