Recently in Thota Vasudeva Rao vs Pyla Venkata

stated in the affidavit filed in support of the petition, the High Court may be pleased to stay of all further proceedings in O.S.No 14 of 2016 on the file of The VIII Additional District Judge, Vijayawada, pending disposal of the above Civil Revision Petition. CIVIL REVISION PETITION NO: 3154 OF 2023 Petition under Section 115 of C.P.C, against the order dated

31.08.2023 passed in I.A.No.1344 of 2022 in I.A.No.177 of 2016 in O.S.No.14 of 2016 on of the VIII Additional District Judge, Vijayawada. Between: B.S.V.M. Durga Prasad, S/o. B.V.Nagalah, Aged 49 years, D.No.1-3/ 2- 4, Near Ramamandiram, Vidhyadharapuram, Vijayawada -520012 ...Petitioner/Petitioner/S’^'* respondent AND

1. Chevuri Anuradha, W/o.Lakshmi Narayana, D.No.29- 30-6, Suryaraopet, Vijayawada -2. <

2. Chevuri Lakshminarayana, S/o.Narasalah, D.No.29- 30-6, Suryaraopet Vijayawada -2. ...Respondents/ Respondents/Plaintiffs

3. Gundarapu Hah Babu, S/o.Somayya, D.No.1-3-51, Four Pillars Centre, Balaji Asramam Street, Vidhyadharapuram, Vijayawada -12.

4. Varada Venkateswara Rao, S/o. Varada Prasad, Shop No.9-76-58, K.T.Road, Komalavilas Centre, Vijayawada-1.

5. Addepalli Srinivasa Sobhanadri Street, Vijayawada-1. Rao, S/o.Venkata Siva Rao, D.No.11-53-30,

6. Yarasingu Aruna Kumari, S/o.Venkata Satyanarayana, D.No.6-21-22, Bangarayya Kottu Centre, Vijayawada.

7. Mukka Naga Satish, S/o. Venkata Ramana, D.No.9- 51-1A, 1 Kummari Street, Kothapet, Vijayawada-1.

8. Ranga Eswaramma, S/o.Prakasha Rao, D.No.9-74- 14, Durga Malleswara Nilayam, Kothapet, Vijayawada -1.

9. B.S.V.M.Durga Prasad, S/o.B.V.Nagaiah, Aged 54 years. Plot No. 101, Netaji Street, Ratna Residency, Patamatalanka, Vijayawada.

10. B.S.V.M.Durga Prasad, S/o.B.V.Nagaiah, Aged 51 years, R/o D.No.1-3/2- 4, Near Ramamandiram, Vidhyadharapuram, Vijayawada - 12. ...Respondents/Respondents/defendants lA NO: 1 OF 2023 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay of all further proceedings in O.S.No 14 of 2016 on the file of The VIII Additional District Judge, Vijayawada, pending disposal of the above Civil Revision Petition. Counsel for the Petitioners in both the cases: Sri Balaji Medamalli Counsel for the Respondent Nos. 1 & 2: Sri T V P Sai Vihari The Court made the following: 1 *THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI & *THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY C.M.A.No.552 OF 2023 & C.R.P.No.3154 OF 2023 %Date;

28.01.2025 #B.S.V.M. Durga Prasad And: $1. Chevuri Anuradha and others Appellant/Petitioner ....Respondents. ICounsel for the appellant/petitioner '^Counsel for the respondents 1 and 2 : : Sri Balaji Medamalli Sri T.V.P. Sai Vihari <Gist; >Head Note; ? Cases referred 2024 see OnLine AP 2933 ^ 2024 see OnLine AP 5450 ’(1981) 2 see 788 ■’(1969) 2 see 779 ’ (2005) 3 see 753 2024 see OnLine SO 3380 2 f HIGH COURT OF ANDHRA PRADESH * ★ * * C.M.A.No.552 OF 2023 & C.R.P.No.3154 OF 2023 DATE OF JUDGMENT PRONOUNCED:

28.01.2025 SUBMITTED FOR APPROVAL: THE HON’BLE SRI JUSTICE RAVI NATH TILHARI & THE HON'BLE SRI JUSTICE NYAPATHY VIJAY

1. Whether Reporters of Local newspapers Yes/No may be allowed to see the Judgments?

2. Whether the copies of judgment may be marked to Law Reporters/Journals

3. Whether Your Lordships wish to see the ^^Ves/No ^^es/No fair copy of the Judgment? 3 THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI & THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY C.M.A.No.552 OF 2023 & C.R.P.No.3154 OF 2023 COMMON JUDGMENT: (per Justice Ravi Nath Tilhari) Heard Sri Balaji Medamalli, learned counsel for appellant/petitioner and Sri T.V.P. Sai Vihari, learned counsel for the respondents 1 and 2.

2. The plaintiffs respondents 1 and 2 filed O.S.No.14 of 2016 for the relief of possession of plaint schedule property against the defendants in the suit and for some other reliefs. In the said suit J 1 third party namely B.S.P.M. Durga Prasad filed I.A.No.177 of 2016 for the impleadment under Order I rule 10 C.P.C to implead as 7*^ defendant and his two brothers as defendants 8 and 9 in the O.S. I.A was dismissed on 20.08.2018, in default.

3. The third party would also be referred as appellant in both the cases.

4. The third party filed I.A.No.1344 of 2022 under Section 5 of the Limitation Act to condone the delay of 1493 days in filing the petition for setting aside the dismissal order and for restoration of I.A.No.177 of 2016. 4

5. The plaintiff-respondents filed counter. They submitted that there were no grounds to condone the delay and to set aside the dismissal order dated 20.08.2018. The application was liable to be dismissed.

6. The learned VIII Additional District Judge, Vijayawada framed the point for consideration, whether application under Section 5 of the Limitation Act could be allowed or not.

7. On consideration, it was held that there was inordinate delay of 1493 days and there was no sufficient cause shown to condone such delay. The ground taken that, the counsel of the third party did not inform about the stage of the petition and so he could not represent the matter, was found unsatisfactory. The abnormal delay of 1493 days, was thus not condoned and the I.A was dismissed by order dated 31.08.2023.

8. The application under Order IX Rule 7 CPC was also rejected by the order of the same date.

9. Challenging the order of rejection of the application under Section 5 Limitation Act I.A.No.1344 2022, C.R.P.No.3154 of 2023 has been filed and challenging the order dated 31.08.2023 in I.A.No.1343 of 2022, C.M.A No.552 of 2023 under Order 43 Rule 1 C.P.C has been filed. 5 f

10. Learned counsel for the appellant submitted that the learned court acted illegally in rejecting both the applications. He submitted that the cause shown was sufficient. The appellant was not informed about the position of the case, by his counsel. He submitted that the mistake of the counsel is a sufficient ground for condonation of delay.

11. Learned counsel for the appellant placed reliance in the case of Shaik Akbar vs. Shaik G. Basha and others\ to contend that in the matters of condonation of delay liberal approach should be taken and the costs might have been imposed.

12. Learned counsel for the plaintiff-respondent submitted that there was inordinate delay of 1483 days. There was no sufficient cause shown. There is no illegality in the order of rejection of the application Section 5 Limitation Act consequently the rejection of the application for setting aside the order dated 20.08.2018 is also justified.

13. We have considered aforesaid submissions perused the material on record. 2024 see OnLine AP 2933 6

14. There was inordinate delay in filing the application for setting aside the order dated 20.08.2018, The cause was shown that the counsel did not inform about the proceedings. The stated is ‘the mistake of the counsel’. The said cause has not been accepted by the learned court as a sufficient cause to condone the inordinate delay. Nothing has been brought record to show the mistake or negligence of the counsel. Any particulars in that regard have also not been disclosed, The appellant has also not stated his efforts made, if any, to show his diligence and being vigilant in prosecuting the case.

15. In Shaik Akbar (supra), upon which, the learned counsel for the appellant placed reliance the suit pertaining to immovable properties, was dismissed for default on

17.06.2016. The petitioner therein filed application for restoration on 05.07.2016 before a wrong court and when it was filed before the correct court by that time there was a delay of 167 days. The application was rejected by the learned court observing that there was no sufficient reason for the delay of 167 days. This Court held that the approach of the learned court was not correct and liberal approach ought to have been taken by the court for condonation of delay and the costs could have been imposed. 7 t

16. In Shaik Akbar (supra), the application for condonation of delay was allowed in the facts of the said case. Initially, the application for restoration was filed on 05.07.2016 for restoration of the suit dismissed for default on 17.06.2016, before the wrong court and when it was filed before the correct court there was a delay of 167 days. In the view of this Court, the petitioner of the said case might have been entitled to the protection of Section 14 of the Limitation Act as well, In the present case, there is inordinate delay of 1493 days and the cause shown is also not sufficient. Shaik Akbar (supra) is therefore of no help to the appellant.

17. There is no dispute that a liberal view is adopted considering ‘sufficient cause’ to condone the delay. But, it is also settled in law that it is not the length of the delay but the sufficient which must be shown. The length of any period, if the cause shown is sufficient, may be condoned. But, if there is sufficient cause, even a days delay may be fatal. Here, the cause shown is not established nor is sufficient.

18. Recently in Thota Vasudeva Rao vs. Pyla Venkata Ramana^ this court after taking into consideration the judgments ^ 2024 see OnLine AP 5450 8 of the Hon’ble Apex Court in Rafiq V. Munshila!^ Lala Mata Din vs. A. Narayanan'*, and State of Nagaland v. LIPOK AO® the point of the mistake of counsel as a cause for condonation of delay observed and held as under: “12. There is no dispute on the proposition of law that in the matters of condonation of delay in filing appeal, “sufficient cause” must receive a liberal and pragmatic approach in favour of condonation of delay, to decide to advance the appeal merits, But, substantial justice. at the same time, the delay cannot be condoned on mere asking. On expiry of the period of limitation, a valuable right accrues in favour of the decree holder to treat the decree as final and binding. Such a right cannot be lightly interfered with. Proof of sufficient cause is the condition precedent for condonation of delay. In the absence of sufficient cause, the delay cannot be condoned. However, if such a cause is established the delay of any days can be condoned, as what matters is not the length of delay but sufficiency of the cause shown. a condonation

13. On the point of mistake on the part of the counsel, v. Munshilall, where there was no fault on the party who had done everything in his power, which was expected of him the Hon'ble Apex Court held that the party would of delay Rafiq ^(1981) 2 see 788 '(1969) 2 see 779 ^ (2005) 3 see 753 9 r not suffer for the default of his advocate. There was slackness on the part of the counsel.

14. In Rafiq (supra), the party had engaged the counsel who was on record and failed to attend the hearing of the appeal which consequently came to be dismissed in default. So, there was no fault on the part of the party. It was the default of the counsel in putting in appearance. There, it was established that the party had done what was on his part. In the present case, it could not be established as a fact that, the petitioner approached the counsels one after the other and that the petitioner had done what was on his part and the other counsels did not take necessary steps in filing the appeal in time. By not disclosing the dates of allegedly approaching three counsels, the petitioner also failed to set up the case that he timely approached the counsels for filing appeal in the period of limitation.

15. In Lala Mata Din (supra), the Hon'ble Apex Court observed that the mistake of counsel may, in certain circumstances be taken into account in condoning the delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bonafide or was merely a device to condone laches on the part of the litigant.

16. Para No. 6 of Lala Mata Din (supra) reads as under: “6. The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is counsel by itself is always a sufficient ground. is always a question whether the mistake It proposition mistake general 10 of the litigant was bona fide or was merely device to cover an ulterior purpose such as laches on the or an attempt to save in an underhand way. The High limitation Court it had, it would have matter from this angle. If seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation.” never considered unfortunately

17. In the State of Nagaland v. LIPOK AOS, also the Hon'ble Apex Court observed and held in para 10 as under: “10. In Concord of India Insurance Co. Ltd. v. Nirmala Devi ((1979) 4 SCC 365) which is a case of negligence of the counsel which misled a litigant into delayed pursuit of his remedy, the default in delay was condoned. In Lala Matu Din V. A. Narayanan ((1969) 2 SCC 770), this Court had held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a ulterior purpose. In that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive.” cover an device

18. Recently, in Rajneesh Kumar v. Ved Prakash®, the suit was dismissed counter claim was allowed. An appeal was filed with delay of 534 days. The same was condoned especially on the ground that the litigant should not suffer on account of negligence on the part of the advocate. The High court in civil revision petition set aside the order of condonation of delay. The Hon'ble Apex court upheld the order of the High court. It was observed and held that the litigant should not be permitted to throw the blame on the head of the advocate and thereby disown him at any time and seek relief.

19. Paras 10 to 11 of Rajneesh (supra) read as under; ^2024 see OnLine Se 3380 11 r judicial lawyers negligence vigilant “10. It appears that the entire blame has been thrown on the head of the advocate who was appearing for the petitioners in the trial court. We have noticed over a period of time a tendency on the part of the litigants carelessness in attending the proceedings before the court. Even if we assume for a moment that the concerned lawyer was careless or negligent, this, by itself, cannot be a ground to condone long and inordinate delay as the litigant owes a duty to be his own rights and is expected to be vigilant proceedings equally pending in the court initiated at his instance. The litigant, therefore, should not be permitted to throw the entire blame on the head of the advocate and thereby disown him at any time and seek relief. 11. In the aforesaid context, we may refer to a decision of this Court in the case of Salil Dutta v. T.M. & M.C. Private Ltd., (1993) 2 SCC 185, wherein this Court observed as under : - “8. The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engage him. It is true that in certain situations, the court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule party can disown its advocate at any time and seek relief. No such absolute recognized. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq [(1981) 2 SCC 788 : AIR 1981 SC 1400] must not be understood as an absolute proposition. As we have mentioned hereinabove, this was an on-going suit posted for final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a villager residing away from the city, Where the court is located. The defendant is also not a rustic ignorant villager but a private limited company with its head office at Calcutta itself and managed by educated It is businessmen who know where their interest lies. evident deposed of before taking up the suit for final hearing that when their immunity can applications a 12 they felt piqued and refused to appear before the court. May be, it was part of their delaying tactics as alleged by the plainti). May be not. But one thing is clear they chose to non-cooperate with the court. Having adopted such a stand towards the court, the defendant has no right to ask its indulgence. Putting the entire blame upon the advocate and trying to make it out as if they S.L.P. (CIVIL) NOS. 935-936 OF 2021 6 were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted.” (Emphasis supplied)”

20. I am of the view that it is to be established first that there was mistake of the counsel, and then that, such mistake furnished sufficient cause to condone delay there is no general proposition that mistake of counsel by itself is always a sufficient cause to condone the delay.” There is no illegality in the order of the learned court. We find no reason to interfere with the order of the learned

20. court.

21. The civil revision petition is dismissed. The appeal is also dismissed Consequently, the Miscellaneous Petitions, if any, pending shall also stand closed. //TRUE COPY// Sd/- E KAMESWARA RAO JOINT REGISTRAR I One fair copy to the Honourable SRI JUSTICE RAVI NATH TILHARI (for His Lordships’ kind perusal) SECTION OFFICER One fair copy to the Honourable SRI JUSTICE NYAPATHY VIJAY (for His Lordships’ kind perusal) To,

1. The VIII Additional District Judge, Vijayawada, Krishna District (with records if any) r

2. One CC to Sri. Balaji Medamalli, Advocate [OPUC] 3. One CC to Sri. T V P Sai Vihari, Advocate [OPUC] 4. Nine (09) L.R copies 5. The Under Secretary, Union of India, Ministry of Law, Justice and Company Affairs, New Delhi

6. The Secretary, Andhra Pradesh High Court Advocates’ Association Library, High Court Buildings at Amaravathi

7. The Section Officer, VR Section, High Court of Andhra Pradesh at Amaravathi

8. Three CD Copies Stu HIGH COURT DATED:28/01/2025 COMMON JUDGMENT CMA No.552 of 2023 & CRP.No.3154 of 2023 DISMISSING THE C.M.A. AND C.R.P.