The High Court · 2025

4- Smt.Rekha Bai, Wo. Late Anand Singh, aged about 35 years, Occ.- Household, All 1 to 4 Defendants are R/o.H.No.8-14181 1 Shaikpet, Hyderabad ...RESPONDENTS/DEFENDANTS 5 6 Prakash Singh, S/o. Late Sheetal Singh aged about 48 years, Occ.-Business, R/o.H.No.13-2-269/28,Baba Balakdas Mutt, Upper Dhoolpet, Hyderabad. Smt.Kalavati Bai, D/o. Late Sheetal Singh aged about 52 years, Occ.- Household R/o.H.No.13-1-517 I 1 lA, Upper Dhoolpet, Hyderabad.

7. Hari Singh, S/o. Late Ratan Singh Aged about 40 years, Occ.-Household, R/ o,H.No. 1 3-5-1 60/3,Amlapur,Karwan, Hyderabad.

8. Smt.Geeta Bai, Wo. Late Bajrang Singh, Aged about 32 years, Occ.- Household, Amlapur, Karwan, Hyderabad. ...RESPONDENTS/PLAINTIFFS Counsel for the Petitione(s): SRI V PADAMNARAYAN Counsel for the Respondents: The Court made the following: ORDER HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CI.L REVISION PETITIOT{ No.274 of 2o24 ORDER: The present revision is hled aggrieved by the order dated 06.11.2023 passed in t.A.No.1573 of 2019 in O.S.No.4S of 2O1O on the file of the X Additional Chief Judge, Ciry Civil Court, Hyderabad.

2. Heard Sri V.Padam Narayan, Iearned counsel for the petitioners. It is mentioned in the Revision that respondent Nos. 1 to 4 are not necessary parties to this revision. None appeared for respondent Nos.S to 8, despite service of notice. Therefore, the matter is being disposed of based on the rnaterial available on record-

3. The petitioners herein are the legal heirs of plaintiff No.2, respondent Nos.1 to 4 are defendant Nos. 1 to 4 and respondent Nos.S to 8 are plaintiff Nos. 1 and 3 to 5 respectively, before the trial Court. For convenience, hereinafter the parties are referred to as they are arrayed in the suit. { 2 LNA, J C.R.P.No.274 ot 2O24

4. The brief factual matrix of the case is that plaintiff Nos.l and 3 to 5 along with one Birju Singh (plaintiff No.2), frled a suit against defendant Nos. I to 4 herein for partition of suit schedule property. When the matter was coming up for defendants' evidence, at that stage, one Birju Singh, who is plaintiff No.2 and was examined as PW2, expired on 2O.O8.2015 and consequently, I.A.No.638 of 2O16 was filed to bring the legal representatives of the deceased Birju Singh on record and the same was allowed uide 19.04.2016 and the suit was posted for carrying out the necessar)/ amendments and hling of fair copy. Hbwever, it appears that the suit was dismissed on 19.06.2O17 for not carrying out the necessary amendments and for not filing fair copy of the plaint.

5. I.A.No.l573 of 2O19 was filed under Section 5 of the Limitation Act to condone the delay of 914 days in filing the restoration petition in O.S.No.4S of 2O 10. It is averred that the plaintiffs are itliterates and they are dependent on their counsel, and as they were not aware of the proceedings, the delay may be condoned. I 3 LNA, J C.R.P.No.274 ot 2024

6. Nevertheless, ttre trial CourL, ui.d.e impugned order dated O6.11.2O23, dismissed the application primarily on the ground that the matter was adjourned from time to time for filing a neat copy and carrying out the amendments. Despite giving suflicient opportunity, neither any amendment was carried out nor fair copy was filed. Further the reasons assigned by the plaintiffs that the counsel did not take any interest in hling neat copy and carrying out the amendments do not constitute sufficient ground to consider the application. The plaintiffs ought to have been diligent in pursuing the matter. The trial Court further observed that the plaintiffs faited to properly explain the reasons for delay and as such, the Court was not convinced and thus, dismissed.the application. Aggrieved by the said order, this revision is hled. 7 . [,earned counsel for the petitioners would submit that the trial Court erroneously dismissed the application and lailed to consider the facts that the evidence on behalf of the plaintiffs was completed, and the matter was at the stage of recording the defendants' side evidence, at which point of time plaintiff No.2 expired; that, the plaintiffs are illiterates 4 LNA, J C.R.P.No.274 ot 2024 and are not aware of the Court proceedings and are dependent on their counsel. Hence, any mistake or default on the part of the learned counsel, the plaintiffs ought not to be penalised.

8. l,eaned counsel for the petitioners would further submit that non-carrying out of the amendments and non-hling of fair copy would result in abatement of suit only insofar as plaintiff No.2 is concerned, however, the suit with respect to other plaintiffs survives, and therefore, the trial Court committed error in dismissing the suit, instead of abetting the suit only against plaintiff No.2 and proceeding further with the suit insofar as other plaintiffs are concerned. Learned counsel for the petitioners relied upon the judgment of the erstwhile High Court of Andhra pradesh in Ithagani Lochaia.h and. others v. Joint Collector a.nd. Ad.d.itional District Mogistrate, No,lgond.a and. others r wherein the Iearned Single Judge held that for the laches on the part of the counsel, the parties to the lis cannot be deprived of their legitimate right of adjudication. It is further observed that in normal circumstances, the delay petition has to be ' zor: 1a1 aro eeu 5 LNA, J C.R.P.N'.274 of 2024 considered by applying the principle of liberality and there is no straight-jacket within which parameters, the delay petition has to be adjudicated and condone delay application has to be considered applying the principles of natural justice so as to do the substantial justice to both the parties.

9. A perusal of the record would disclose that evidence on the plaintiffs'side is completed and the suit was coming up for the evidence of the defendants, and at that stage, plaintiff No.2 had expired and as such, I.A.No.638 of 2O16 was frled to bring on record the legal representatives of plaintiff No.2 and the same was allowed on 19.O4.2016. However, amendrnents were not carried out and fair copy was not fltled. Therefore, the suit was dismissed on 19.04.2016 for default. As rightly pointed out by the learned counsel for the petitioners, cause in the suit survives insofar as other plaintiffs is concerned and the trial Court could have abated the suit insofar as plaintiff No.2 is concerned. It is appropriate to refer to Order XXII Rule 2 (21 of C.P.C. which reads as under: "Procedure where one of several plaintiffs or defendants dies and right to sue survives.-Where there are more plaintifls or defendants than one, and any of them dies, and where the right to sue survives 6 LNA, J C.R.P.No-274 ot 2024 to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to the effect to be made on the record,. and the suit shall proceed at the instance of the surviving plaintift or plaintiffs, or against the surviving defendant or defendants. "

10. Order XXII Rule 2 of C.p.C. mandates that in case of death of one of the plaintiffs or the defendants, if right to sue survives to the surviving ptaintiff or plaintiffs or defendant or defendants, the Court shall cause an entry to that effect and proceed with the matter.

11. Therefore, in view of the above, the trial Court committed error in dismissing the suit instead of proceeding further with the suit with the suwiving plaintiffs i.e., plaintifl Nos.l and 3 to 5. Insofar as condonation of delay is concerned, it is a specific case of the plaintiffs that they are illiterates and are dependent on their counsel and they are not aware of the court proceedings and other plaintilfs are pursuing the matter. Therefore, there is a delay of 914 days in hling the application to restore the suit.

12. It is a settled principle of law that ignorance of cor-rrt proceedings is not an excuse for condonation of delay and the plaintifls ought to have been diligcnt in pursuing the matter. 7 LNA, J C.R.P.No.274 of 2024 However, the fact remains that the trial Court instead of proceeding with the suit at the instalce of the surviving plaintiffs, erroneously dismissed the suit fior default. Since the suit is hled for partition, substaltial rights of the parties insofar as the schedule of property are concerned are alfected, therefore, in the considered opinion of this court, the trial Court ought to have been liberal in adjudicating the matter while considering the application for condonation of delay.

13. In N.Balakrishnan u. M.Krishnannurthg2, wherein at paras 9 and lO it is held as hereunder: '9. It is axiomatic that condonation of delay is a matter of discreLion of the Court. Section S of the Limitation Act does not say that such discretion can be exercised only if the delay is whtin a certain limit. Irngth of delay is no matter, acceptability of the explanation is the only criterion. Sometimes dealy of shortest range may be uncondonable due to want of acceptable explanation, whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as suflicient it is the result of positive exercise of discretion and normally the superior Court should not disturb such hnding, much {ess in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court reluses to condone the delay- In such cases, the superior c.ourt 'ArR 1P98 Special Court 3222 8 LNA, J C.R.P-No.274 of2O24 would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own hnding even untrammeled by the conclusion of the lower Court.

10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause." In the said judgment, the Hon'ble Supreme Court held that Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly; that the words "sufrrcient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. The Hon'ble Supreme Court also observed that it must be remembered that in every case of delay there can be some lapse on the part of litigant concerned- That alone is not enough to turn down his plea and shut the door against him. ll the explanation does not smack of mala hdes or it is not put forth as part of a dilatory strate$.,, the Court must show utmost consideration to the suitor." L4. Therefore, in the light of the legal position and the peculiar facts and circumstances of the case as discussed above, the Civil Revision Petition is allowed by setting aside the impugned order uide I.A.No,1573 of 2019 in O.S.No-45 of 2O10 and the suit is restored to its original stage. The plaintilfs shall carryout necessary amendments and frle a neat copy within a period of four (O4) weeks lrom the date of \ 9 LNA, J C.R.P.No.274 ol2024 restoration of the suit and shall cooperate with the Court for expeditious disposal of the suit. No costs. As a sequel, the miscellaneous petitions pending, if any, shall stand closed. Sd/- P.CH. NAGABHUSHAMBA DEPUW REGISTRAR /ffRUE COPY// tu; SEC FFICER To, t

1. X Addl. Chief Judge, City Civil Court, Hyderabad-. z. cj"" cc t" sRl V FADAMNARAYAN Advocate [oPUC] 3. Two CD CoPies (u- SS/PSL I HIGH COURT DATED:0910612025 ORDER CRP.No.274 ot 2024 ,. s i4i_ '\. o 1q ( o o 3 1 JUt 2025 * D i'Li | | \( ALLOWING THE C.R.P. WITHOUT COSTS flii- 1 )5' o q *