P.Mangamma v. Adepu Venkateshwar Rao

Order

The defendant in the suit, O.S.No.51 of 2009 on the file of the learned Senior Civil Judge, Siddipet, Medak District, is the petitioner in these three Civil Revision Petitions. The suit, O.S.No.51 of 2009, was filed by the respondent/ plaintiff for specific performance of the agreement of sale dated 02.08.2008 said to have been executed by the petitioner/defendant or in the alternative for refund of the sale consideration already paid along with interest and for a perpetual injunction. By order dated 29.01.2010, the trial Court set the petitioner/ defendant ex parte in the suit proceedings and by judgment passed on the same day, it decreed the suit directing the petitioner/ defendant to execute a sale deed within two months in respect of the suit schedule property on receiving the balance sale consideration failing which the

respondent/plaintiff was held entitled to get the sale deed executed through Court. The respondent/plaintiff filed E.P.No.9 of 2010 seeking execution of the aforestated decree. Upon receiving notice in the said execution petition, the petitioner/defendant filed I.A.No.264 of 2010 in O.S.No.51 of 2009 to set aside the ex parte judgment and decree dated 29.01.2010 passed against her. The respondent/plaintiff contested the application contending that the petitioner/defendant had not sought condonation of the delay on her part in approaching the Court. The petitioner/defendant thereupon filed I.A.No.190 of 2011 in I.A.No.264 of 2010 in O.S.No.51 of 2009 to condone the delay of 143 days in filing I.A.No.264 of 2010 for setting aside the ex parte judgment and decree in O.S.No.51 of 2009. In the meanwhile, the learned Senior Civil Judge, Siddipet, passed order dated 06.10.2010 in E.P.No.9 of 2010 directing the office to call for the valuation of the E.P. schedule property from the Sub- Registrar, Gajwel, for execution of the sale deed through Court. Aggrieved thereby, the petitioner/defendant filed Civil Revision Petition No.5224 of 2010 before this Court. By order dated 31.12.2010, this Court directed the learned Senior Civil Judge, Siddipet, to deal with I.A.No.264 of 2010 filed for setting aside the ex parte judgment and decree in O.S.No.51 of 2009 immediately and till then, not to proceed with the execution petition. By then, the learned Senior Civil Judge, Siddipet, had however proceeded with the execution petition and the sale deed was executed through Court, being Document No.6099 of 2010 dated 15.12.2010. Thereafter, by order dated 04.07.2011, the learned Senior Civil Judge, Siddipet, dismissed I.A.No.190 of 2011 in I.A.No.264 of 2010 in O.S.No.51 of 2009 holding that no reasons had been put forth by the petitioner/defendant for condonation of the delay in the filing of I.A.No.264 of 2010 for setting aside the ex parte judgment and decree in the suit. Having dismissed the said I.A., the learned Judge passed a separate docket order on the same day in E.P.No.9 of 2010 directing issuance of the delivery warrant for effecting delivery of the E.P. schedule property to the respondent/ plaintiff. The order dated

04.07.2011 in I.A.No.190 of 2011 in I.A.No.264 of 2010 in O.S.No.51 of 2009 is called in question by the petitioner/defendant in Civil Revision Petition No.2596 of 2011, while the docket order dated 04.07.2011 passed in E.P.No.9 of 2010 is challenged in Civil Revision Petition No.2600 of 2011. This Court, by orders dated 08.07.2011 passed in these two Civil Revision Petitions, granted stay of all further proceedings pursuant to the judgment and decree dated 29.01.2010 in O.S.No.51 of 2009 and the docket order dated 04.07.2011 in E.P.No.9 of 2010, including delivery of possession in E.P.No.9 of 2010. The respondent/plaintiff filed a petition in CRP No.2596 of 2011 to vacate the aforestated interim order. With the consent of the learned counsel, the three Civil Revision Petitions are taken up for final disposal. It is the case of the petitioner/defendant that upon receiving summons in the suit, O.S.No.51 of 2009, she appeared before the Court personally on 16.09.2009 and sought time for engaging a counsel. She claims to have engaged one A.Rajeshwar Reddy, Advocate, to defend her. She stated that the Advocate obtained her signatures upon the vakalat and some other papers also. She further claims that she was under the impression that the said Advocate would take up the case and inform her about the developments therein; and that she was unaware of the suit having been decreed ex parte till she received notice in E.P.No.9 of 2010 on 25.06.2010. These are the grounds stated by her in the affidavit filed in support of I.A.No.264 of 2010, whereby she sought setting aside of the ex parte judgment and decree dated 29.01.2010 passed in the suit. This application was filed by the petitioner/ defendant on 21.07.2010. The said application was therefore pending before the learned Senior Civil Judge, Siddipet, at the time of the passing of the order dated 06.10.2010 in E.P.No.9 of 2010. The learned Judge, in fact, referred to the factum of the Judgment Debtor having filed a petition to set aside the ex parte decree and that the same was pending before the Court. Having stated so, surprisingly, learned Judge contradicted himself thereafter by saying that the Judgment Debtor had not taken steps for setting aside the ex parte decree and therefore the decree passed by the Court stands good. It is on the basis of this erroneous and self-contradictory observation that the learned Senior Civil Judge, Siddipet, directed further steps to be taken for execution of the decree in O.S.No.51 of 2009. This order was challenged before this Court in C.R.P.No.5224 of 2010. Unfortunately, by the time this Court directed the learned Senior Civil Judge, Siddipet, to take up the application in I.A.No.264 of 2010 for setting aside the ex parte decree in O.S.No.51 of 2009 in the first instance and deal with it immediately and till then, not to proceed with the E.P., the learned Senior Civil Judge, Siddipet, had already gone ahead with the execution proceedings and the sale deed was executed through process of Court on 15.12.2010 itself. In the meanwhile, as the respondent/plaintiff had raised the issue of delay on her part in filing I.A.No.264 of 2010, the petitioner/defendant filed I.A.No.190 of 2011 seeking condonation of the delay of 143 days in the filing of the set aside application. The affidavit filed by the petitioner/defendant in support of this application demonstrates that she claimed knowledge of the passing of the ex parte judgment and decree only upon receiving the notice in E.P.No.9 of 2010 on 25.06.2010. Pertinent to note, the application in I.A.No.264 of 2010 to set aside the ex parte decree was filed by her on

21.07.2010. The learned Senior Civil Judge, Siddipet, was however of the opinion that the petitioner/defendant had failed to put forth reasons to explain the delay of 143 days in the filing of the said I.A. Having referred to relevant case law on this issue, the learned Judge surprisingly held that the same was not applicable as the facts of the case were dissimilar and accordingly dismissed the condone delay application. Consequent upon such dismissal, the learned Judge directed issuance of the delivery warrant for effecting delivery of possession of the E.P. schedule property, by a separate docket order dated 04.07.2011 in E.P.No.9 of 2010. These two orders are called in question in the two later C.R.Ps. Sri K.Govind, learned counsel for the petitioner/defendant, contended that the trial Court erred in rushing through with the execution of the ex parte decree ignoring the fact that his client had already initiated steps for setting aside the same. Learned counsel, basing on the sequence of events, pointed out that this undue haste was clearly demonstrable. He placed reliance on case law in support of his contention that the Court below ought to have been more liberal in considering the condone delay application. I n N.BALAKRISHNAN v. M.KRISHNAMURTHY[1], Supreme Court observed that condonation of delay is a matter of discretion of the Court and that the length of the delay may not, by itself, be determinative of the exercise of such discretion. The Supreme Court further pointed out that once the trial Court accepts the explanation for the delay as sufficient, it would be the result of positive exercise of discretion and normally, the superior Court should not disturb such finding. However, it would be a different matter when the Court refuses to condone the delay and in such cases the superior Court would be free to consider the cause shown for the delay afresh and it would be open to such superior Court to come to its own finding, untrammelled by the conclusion of the trial Court. The Supreme Court opined that the reason for this difference in approach is because the primary function of the Court is to adjudicate the dispute between the parties and to advance substantial justice. Rules of limitation are not meant to destroy the rights of the parties but are meant to see that the parties do not resort to dilatory tactics and seek their remedy promptly. The law of limitation is thus founded on public policy. The Supreme Court further observed that there is no presumption that delay in approaching the Court is always deliberate and that the words ‘sufficient cause’ in Section 5 of the Limitation Act, 1963 should receive a liberal construction so as to advance substantial justice. If the explanation for the delay does not smack of mala fides and is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is a reasonable ground to think that the delay was occasioned by the party deliberately to gain time, the Court should lean against acceptance of explanation. While condoning the delay, the Court should not forget the opposite party altogether and it would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant, the Court should compensate the opposite party for his loss. The same principle was reiterated by the Supreme Court in LANKA VENKATESWARLU v. STATE OF ANDHRA PRADESH[2]. The Supreme Court observed that the Courts in this country adopt a liberal approach in considering applications for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act, 1963 and reaffirmed the principle that rules of limitation are not meant to destroy the rights of the parties. I n NAGULAPU RAJU v. TIRUPATHI[3], a learned Judge of this Court succinctly summed up that existence of ‘sufficient cause’ under Section 5 of the Limitation Act, 1963 is always open to a liberal construction and if any inconvenience caused to the opposite party can be compensated by appropriate terms, such conditions should be imposed instead of the Court refusing to determine the dispute on merits in accordance with law. Per contra, Sri Pochaiah Dorishetti, learned counsel for the respondent/plaintiff, contended that once there was delay on the part of the applicant, each day’s delay has to be explained. He relied on A.JOHN PETER v. GANGISETTY MADDULETI @ MADDULETAIAH[4], wherein a learned Judge of this Court upheld the refusal by the trial Court in that case to condone the inordinate delay of 1102 days in filing the application to set aside the ex parte decree. Perusal of the said judgment reflects that this Court, on examining the reasons recorded by the trial Court, was thoroughly satisfied that the exercise of discretion by the said Court was proper and that sufficient cause had not been shown for explaining the inordinate delay. In the present case, the learned Senior Civil Judge, Siddipet, having referred to the ratio laid down by this Court in NAGULAPU RAJU3, surprisingly refused to apply it on the ground that the facts of the case were different. This understanding of the learned Judge that facts should be identical for applying a precedent is absurd, to say the least. The principle laid down, being the ratio decidendi, would have precedential value. Such a precedent would usually be binding in a later case irrespective of disparity, if any, on facts. Time and again, Courts have held that matters should generally not be decided on technicalities. All the more so, when they involve valuable property rights of the parties. A liberal approach has been advocated while considering condone delay applications in such cases and in the event the inconvenience caused to the other side can be compensated with costs, the Court must invariably adopt such a course. In the present case, the unrebutted stand of the petitioner/ defendant was that she was ignorant of the developments in the suit till she received notice in E.P.No.9 of 2010 on 25.06.2010. She filed the application for setting aside the ex parte decree within a month thereafter. The delay, in all, was 143 days taking into account the date of the decretal of the suit, 29.01.2010. The argument of Sri Pochaiah Dorisheeti, learned counsel, that the delay should be counted upto the date of institution of I.A.No.190 of 2011 is erroneous as the delay is to be reckoned in the context of filing of the application for setting aside th e ex parte decree only. In effect, the petitioner/defendant had to explain the delay on her part after receiving the notice in the execution petition upto the date of filing I.A.No.264 of 2010. As this period was less than a month, the Court below ought to have adopted a liberal approach instead of taking a hyper-technical stance that the petitioner/ defendant failed to put forth any reason for condoning the delay of 143 days. Thus, unlike the fact situation in A.JOHN PETER4, sufficient grounds existed for condoning the delay in the present case. The order of the learned Senior Civil Judge, Siddipet, refusing to condone the said delay is therefore unsustainable and is accordingly set aside. Consequently, the delay is condoned. Further, as the ex parte adjudication by the learned Judge had a serious adverse effect upon the petitioner/defendant, in as much as she had to part with her property without even being heard on merits, and the delay on her part in moving the set aside application has already been condoned, the judgment and decree dated 29.01.2010 passed in O.S.No.51 of 2009 by the learned Senior Civil Judge, Siddipet, are set aside. I.A.No.190 of 2011 in I.A.No.264 of 2010 in O.S.No.51 of 2009 and I.A.No.264 of 2010 in O.S.No.51 of 2009 are accordingly allowed. This Court is however conscious that the respondent/ plaintiff was allowed to process E.P.No.9 of 2010 upto the stage of execution of the sale deed through Court, without any evident fault on his part. It would therefore be appropriate that he be sufficiently compensated monetarily for the loss and inconvenience caused to him. The petitioner/defendant shall accordingly pay a sum of Rs.2,500/- to the respondent/plaintiff towards costs. In so far as the proceedings in the execution petition are concerned, it is indeed surprising that in spite of the petitioner/ defendant having filed an application in I.A.No.264 of 2010 for setting aside the ex parte decree in O.S.No.51 of 2009, the learned Senior Civil Judge, Siddipet, though well aware of the same, passed orders on 06.10.2010 for further process to be initiated in execution of the said decree. The contradiction in the order dated 06.10.2010 passed by the learned Judge indicates the precipitate and unnecessary urgency with which the Court below proceeded in the matter showing scant regard to settled legal principles as to how it should proceed in a petition for execution of an ex parte decree when an application to set aside such decree was pending. The intervention by this Court on 31.12.2010, through the interim order in C.R.P.No.5224 of 2010, proved to be too late as the learned Senior Civil Judge, Siddipet, had by then executed the sale deed in favour of the respondent/plaintiff. However, as this Court has now set aside the ex parte judgment and decree, the steps taken by the learned Senior Civil Judge, Siddipet, in execution thereof would stand nullified. The orders dated 06.10.2010 and 04.07.2011 passed by the learned Senior Civil Judge, Siddipet, in E.P.No.9 of 2010 would therefore be of no consequence and are accordingly set aside. So too, the execution of the sale deed in favour of the respondent/plaintiff through Court. The sale deed bearing Document No.6099 of 2010 dated 15.12.2010 on the file of the Sub-Registrar, Gajwel shall, in consequence, stand cancelled. Intimation of such cancellation shall be given to the Sub-Registrar, Gajwel, as per Section 31 of the Specific Relief Act, 1963. It shall be open to the respondent/plaintiff to apply for refund of the stamp duty paid by him towards execution of this sale deed in accordance with law. The suit, O.S.No.51 of 2009, shall stand restored to the file of the learned Senior Civil Judge, Siddipet, who shall take up the same for trial and adjudication afresh, giving due opportunity to the petitioner/defendant to enter her appearance and file her written statement, and decide the matter on merits expeditiously. Civil Revision Petition Nos.5224 of 2010, 2596 and 2600 of 2011 are allowed. CRPMPs filed in these three CRPs shall stand dismissed in the light of this final order. The petitioner/defendant shall pay a sum of Rs.2,500/- (Rupees two thousand and five hundred) to the respondent/plaintiff towards costs within two (2) weeks from the date of receipt of a copy of this order. _______ AUGUST, 2011 VGSR ____________________ SANJAY KUMAR, J. [1] (1998) 7 SCC 123 [2] 2011 (2) SCJ 818 [3] 2009 (6) ALT 408 [4] 2010 (6) ALT 605