Shakuntala Deri Jain v. Kuntal Kumari

Mis. Kranthi Automobiles, Warangal rep by its partners. Chintal3pani Pranathi Reddy, _Wo. Srikanth Reddy, D/o. Govind / Reddy, ag_ed 34 years, Occ. Medicdl practitioner, nlo kiiiinnagar at present H.No. 2-5- 1 17 . Nakkatagutta, Hanamkonda. Warangaf Oiiiiili b'JgiHf 'lyn?""l':E:,Pfi:n?3u?,1?i,or.Jl:X.ffiir,1,,fi :..",1,#J:fl ',:io* M/s. Balaji Group, Kamareddypally (V) represented by its Group / Members (Defendants g to 13/Responde;ts fud S to'gy. Venuvanka Sanjay Babu, S/o. Raja Mallaiah, aged 25 years, Occ. Aoriculture. R/o. Kamareddlpaly virrise. pji(ir Manaar,'wi,irrfr"rioGti;cJ* "Y'*"''(u'u' Venuvanka Sudhir Babu, Sio._Raja [Mallaiah, aged 29 years, Occ. Agriculture, R/o. Kamareddypally Village. pa rkal Mandal,' Warangei Oistrict - -- -' B. Danchanala Rajtha, D/o. Sampath, aged24 years, Occ Holse hold, R/o' KamareddyJ:alh; Village, Parkal Mandal, Warangal Dislrict.

9. Mamidala Kavlt1a, D/o. Venkatarajyam, aged 22 year:;, Or;c. Agriculture, Rio- KamareddyS:allv Village, Parkal Mandal, Warangal District '10. Raioiu Stvaor,i.. D/o. Raiamouli. aged 23 years. Occ. Agriculture, R/o' Kahr'aredcyl:all" Village, Pirkal Mandal, Warangal District

11.BSL Agetrces; H No. 16-7-121, Old Grain lVtarket, Warang',tl rep by its / tv'lanaging F'artrtr-'r Bollum Sampath Kumar, S/o. Late Vis;hwanqdham, aged +B yelrs]O,.c lusiness, Rio. H.No. 11-27-36' 1st Bank Colony, Warangal' (Respondents Nrr.1r trt I 'l are not necessary parties to this Rev sic n P€'tition) ... Respondents/ResponCentr;/Respondents lA NO: I OF 2019 Petition urcer iection 151 CPC praying that in the <;ircu nr sttrnces stated in the affidavit filed in s;trpport of the petition, the High Court rnay be lrleased to stay the execution of ttre 1 I Jgment and decree passed on 31-7 -201 / in 'f S No 392 of 2006 on the file cf the -1on'ble I Additional Senior Civil Judge at Wa.angal pending disposal of the nra n Fk;vision Petition in the interest of justice atrd p rss Counsel for the [)elitio rer(s):SRl. GADl.Praveen Kumar Counsel for the Flespc r dents: A.Krishnam Raju The Court made thr: ''( llowing: ORDER ,'l THE IIONOURABLE DR.JUSTICE G.RADHA RANI CIVIL REVISIONPETITIONNo.1492 of2Ol9 ORDER: This civil Revision petition is filed by the petitioners/appellants, aggrieved by the order and decree dated, 25.02.2019 passed in I.A.No.1027 of 2018 in an unregistered Appeal Suit on the file of the leamed Principal District Judge at Warangal.

2. The appellants are defendant Nos.3 to 5 and 7 in O.S.No.392 of

2006. The respondent No.l/plaintiff filed the suit for recovery of money and the said suit was decreed on contest on 31.07 .2017 holding that the defendant Nos.3 to 7 were jointly and severally liable to pay a sum of Rs.4'32,0451- with future interest @ 10.29% per annum till rearization. Aggrieved by the said judgment and decree, the defendants preferred an appeal and as there is a delay of 139 days in prefer-ring the appeal, filed an application under Order XLI Rule 3-A of CPC read with Section 5 of Limitation Act to condone the delay of 139 days in filing the appeal from 01.12.20 lt to 18.04.2018. The said application was dismissed by the learned principal District Judge, Warangal. Aggrieved by the said dismissal of the petition filed by them 2 Dt.GRR,l CI P No.1492 oI2019 in I.A.No.10,l7 ri 2018 in the unregistered Appeal Suit. the petitioners herein pref,:r, etl t ris revision.

3. Heard kri rned counsel representing Sri Gacli Prave':n Kumar, leamed courscl fbr the petitioners and leamed cbunsel ap pearing on behalfofSri .A ilrishnam Raju, for the respondents.

4. Learne,d c r,unsel for the petitioners submitted that the mother of petitioner \o. I titl sick, she was hospitalized and subset uently she died. She wrs 11 important family member of all the petitioners, as such, all tht: tiunily members were attending to her trerttment and subsequenlly drrt: to the grief, they could not contact their' < ounsel and could not fil(: trr appeal in time. Petitioners had shown suff cient cause for condorir.,pr the delay, as such, the lower Appellate Cor- rt ought to have given .Ln rpportunity to the petitioners to ctLallenge the money decree passie,.l tr', the tr'al Court on merits and prayed to allov'the CRP

5. On tlre other hand, leamed counsel for the respondents vehementlv ,.,pposed the petition stating that the lower .,\ppcllate Court has rightly drsrrissed the application, as no sufficierlt c€use was shown by the petitir:,n:':i. no documentary proof was filed by thern in proof of their contentioi.r that the mother of petitioner No.l fell ill and died, due 3 Df.GRR,T CRP No.1192 of20D to the said illness. It was only stated that the mother of the petitioner No. I fell ill, but no explanation was given as to why the other petitioners could not approach the Court in filing the appeal and prayed to dismiss the petition as devoid of merits.

6. Perused the record. As seen {iom the affidavit filed by the petitioner No.3/defendant No.4 along with I.A.No.1027 of 201g, it is stated that the mother of petitioner No.1 was also his grandmother. As she was hospitalized and all family members were attending her treatment and subsequently, due to the grief, they could not pursue the case in filing the appeal and the delay caused was not intentional, but due to the above reason. He further contended that the petitioners had fair chances in succeeding the appeal, the amount of Rs.2,00,000/- repaid by the defendant Nos.8 to 13 was not deducted from the claim amount, the petitioners were disputing that they were partners of the firm, without properly appreciating their contentions, the trial Court decreed the suit.

7. Considering that the delay is only of 139 days and the same was not inordinate and an acceptable explanation was also given by the petitioners and the primary function of the Court is to adjudicate the dispute between the parties and to advance substantial justice and \ '.'?_€' 4 Dr.GRR,l CltP No.1192 of20l9 refusal to ()onc(,ne the delay would result in foreclosing a r;uitor from putting fortl. his cause and there was no presumotiorr th rt delay in approaching thc court was deliberate and the Hon ble Apt'x Court in several casesr l-Lt ld that the word "sufficient cause" under Section 5 of the Limitation Act should receive a liberal constr rction [N. Balakrishnan \r. M. Krishna Murthy (1998) 7 ti,CC 123), Shakuntala Deri Jain v. Kuntal Kumari (AIR 1969 SO 575) and State of West llengal v. Administrator, Howrah Municipality (AIR 1972 SC 7'19t\. i - is considered fit to allow the rervision.

8. The lfu r'ble Apex Court in N. Balakrishn:rn v. M Krishnamurth,r case held that: '11 nrust be remembered that in every case .lf dclar' rhr:re can be some lapse on the part of the litig,ant ,ion iilrned. That alone is not enough to tum cown his rlr:r and to shut the door against him. If thc ,:rpliLnation does not smack of mala fides or it is not lut lorth as part of a dilatory strategy the coufl nrust iho,\ utmost consideration to the suitor. But rvhen ,h(le is reasonable ground to think that the delay ,vas rcc r:;ioned by the party deliberately to gain time then rh(l rourt should lean against acceptance of the :xplanation. While condoning delay the court sht,uld rc1 ;brget the opposite party altogether. It must be rrrrr: in mind that he is a looser and he too w<'uld rar: incurred quiet a large litigation expenses lt worrld be a salutary guideline that wher courts :onlone the delay due to laches on the parl ol the lpplicant, the court shall compensate the opposite rartl for his loss. 5 Dr.GRR,t CRP No.I192 of20I9 .\ I

9. In the result, the CRp is allowed, setting aside the order, dated

25.02.2019 passed by the leamed principal District Judge, Warangal, in I.A.No.1027 of 2018 in unregistered Appeal Suit, by condoning the delay on payment of costs of Rs.2,000/- to the .respondent/plaintiff within a period of (15) days from the date of receipt of a copy of this order. The lower Appellate Court is directed to register the suit, if it is otherwise found to be in order. No order as to costs. Miscellaneous petitions pending, if any, shall stand closed. To, 1 2 J 4 //TRUE COPY// SD/- MOHD. ISMAIL PUTY REGISTRAR SECTION OFFICER The Principal District Judge at Warangal. (with reco One CC to SRl. GADI Praveen Kumar, Advocate [OpUC] One CC to SRI. A Krishnam Raju, Advocate tOpUCl Two CD Copies s if any) ,TR'qv HIGH COURT DArED.17 t03t2,0,t5 ORDER CRP No.1492 or' 2l1 !l I I 1'- . t_ -1 ..ai ,,'-) 1 ,llJ { .) \l: \T-Li<' CIVIL REVISION P]iI I IIt)N IS AI,LOWED 1 b t- h