K.Valarmathi and Others v. Kumaresan

Counsel for the Respondent: SRI P RAJAGOPAL REDDY The Court made the following: ORDER r I I I i I i I I I I THE HON'BLE WSTICE B.R. MADHUSUDI:AN RAO CIVIL REVISION PETI TION No.396 of to22 ORDER: The. present Civil Revision Petition i'; filed under Article 227 of Constitution of India assailinll the order in I.A.No.710 of 2018 in O'S-No.148 of I 010, dated 15.04.2021 passed by learned Principal lunior Civil Judge, Huzurabad, Iiled under Section 5 of rl c Limitation Act to condone the delay of 2,742 days.

2. Petitioners are the defendants and thc r:spondent is the plaintiff in O.S.No.148 of 2010.

3. Learned counsel for the petitione rs sulr nits that the trial Court ought to have seen that summor s/notices in O.S.No.148 of 2010 on the fite o[ lear-r:d Principal Junior Civil Judge, Huzurabad are not sr rved on the petitioners to enable them to appear before t] Le Court and ought to have verified whether summons rre served on 2 the petitioners or not. The trial Court ought to have seen that there is sufficient cause in not approaching the trial Court within time to set aside thre ex parte decree and the petitioners came to know about the ex parte decree in the RDO appeal where the respondent has filed a copy of the order passed in O.S.No.148 of 20 10 dated lO.O2.2Oll. Delay occurred in filing the petition in setting aside the ex parte decree is neither willful and nor wanton and prayed to set aside the impugned order.

4. Learned counsel for the respondent submits that the petitioners were served with the summons. But, due to non filing of the written statement, they were set ex parte. Thereby, the learned trial Court has passed a judgment and decree in his favour in O.S.No. L48 of 2OlO, dated 10.02.2011.

5. The petitioners have stated in I.A.No.71O of 2018 that they have not received summons/notices from the Court in O.S.No.148 of 2010 and they recently came to 3 know that respondent has f,rled an Appeal \t .274 of 2OtT before the RDO, Huzurabad. In the said rppeal, their counsel has filed the counter and docurr t nts and the counsel on record has not properly advist:, I them. It is further stated. in I.A.No.710 of 20 18 that pe. rioner No.2,s father was hospitalized and his father was ; rffering with lower backache (lumbage), Sciatica and jorr t pains and the Doctor has advised to take regular treatrr ent and rest from Januar5r,2OlO till the date of hling tht petition i.e., on 11.09.2018. Due to which, the petitio-ers are not awa-re of the decree passed by the Court in tre said suit on 10.02.201 1.

6. The respondent-plaintiff and his rli rghter has alienated the suit land to the petitioner No.2 _ dclendant No.2 by executing a simple sale deed and t -re samc is mutated in his narne and pass book is iss ued in his favour, which happened before liling of the sui , there is a delay of 2,742 days in filing the application tr set aside 4 tJ:re ex parte decree rn O.S.No.148 of 2OlO, dated lO.O2.2Ol1 from 09.03.201 1 to i0.09.2018.

7. The respondent has filed his counter and contended that the summons were served on the petitioners. They failed to file written statement and thereby they were set ex parte and hnally the learned trial Court had disposed of O.S.No.148 of 2010 on lO.O2.2Oll. No bona fide reasons are mentioned by the petitioners to condone the delay of 2,742 days. Hence, interference is not called for and prayed to dismiss the Civil Revision Petition.

8. Power of the High Court under Article 227 rs supervisory and is exercised to ensure courts and tribunals under its supervision act rvithin the limits of their jurisdiction conferred by lau'. This power is to be sparingly exercised in cases where errors are apparent on the face of record, occasioning grave injustice by the court or tribunal assuming jurisdiction which it does not have, failing to exercise jurisdiction which it does have, or 5 I exercising its jurisdiction in a perverse I ranner (See: K.Valarmathi and Others Vs. Kumaresan 2025 SCC Online SC 985).

9. The Hon'ble Apex Court in case of Shii emma (dead) by LRs v. Karnataka Housing and others reported ln 2025 LiveLaw (SC) 899, observed in para5 raph Nos.39 and 40, which reads as under: "39. Thus, we have no hesitation in sayin3 that botl-r the expressions, by a necessary implication irL, icatt: that the phrase " uithin such peiod signihes that he period covcrcd therein extends to not only thc origi ral pcriod nithin which, the appeal or the application, r ; the case may be, should have been filed, if not for thc lel:ir', but also the period taken in addition to the prescr i rcd pcriod o[ limitation for filing such appeal or applic:rt i rr, as Lhe casc may be.

40. As such, under Section 5 of the Limitati the purpose of seeking condonation of delay in appeal or application, as the case may be, -r stipulated period of limitation, the delay in th: to be explained by demonstrating the cxis r "sufficient cause" that resulted in such delay f: prescribed period of limitation as-well as the 1r rn A<:t, for Liing oI an :vond Lhe tiling has ncc of a - t;oth thc riod aftcr 6 the expiry of limitation, up to actual date of filing of such appeal or application, as the case may be, or to put it simply, explanation has to be given for the e ntire duration from the date when the clock of limitation began to tick, up until the date of actual liling, for seeking condonation of delay by recourse to Section 5 of the Limitation Act.

10. The respondent-plaintiff has filed O.S.No.148 of 2OLO for grant of perpetual injunction against the petitioners-defendants from interfering with his peaceful possession and enjoyment over the land in Sy.No.67/C to an extent of Ac. 1-00 guntas, situated at Kandugula Village, Huzurabad Mandal, alleging that the petitioners- defendants interfered with his possession oo 22.O8.2O1O and disturbed the western side boundary of the suit land.

11. It is mentioned in the judgment dated lO.O2.2OLI, in O.S.No.148 of 2OlO, that the petitioners, n'ho are the defendants in the suit, remained ex-parte. The respondent-plaintiff himself was examined as PW-1 and 7 got marked Ex.Al to A,3 and finally, learn:1 trial Court had decreed the suit as prayed for. L2. The reasons mentioned by the p€titL,nsls in the affidavit is that the petitioner No.2,s father r; rffered lower back ache (lumbage), Sciatica and with joir t pains and the Doctor has advised him to take regu.ir treatment from January, 2OlO till the date of filing tt, application i.e., on 11.09.2018. The contention of the ::titioners in the affidavit is that they were not servc d with the summons/notices, which is against the re,: rrd and the countcr filed by the respondent shows that tl e summons u,ere served on the petitioners, but, due to ron filing ol tl-rc written statement, they were saic ex parte. Furthermore, delay of 2,742 days is n rt property cxplained by the petitioners in the aflidar it and the re:rsoning of the trial Court at paragraph N,t 5 supports the contention of the learned counsel for tht, respondcnt 8 that summons were served on the petitioners and they were given ample opportunity to hle written statement.

13. Learned trial court has appreciated the facts in proper perspective and righfly dismissed the application for condonation of delay of 2,742 days. In view of the same, this Court is not inclined to interfere with the same and the Civil Revision Petition lacks merits and the same is liable to be dismissed. L4. Accordingly, this Civil Revision Petition is dismissed. There shall be no order as to costs. Interim orders shall stand vacated and miscellaneous, if any, pending in the Civil Revision Petition shall stand closed. SD/. K.AMMAJI D PUTY REGISTRAR //TRUE COPY// SE ON OFFICER To, 1- 4\t

1. The Principal Junior Civil Judge, at Huzurabad 2. One CC to SRl. P DEVEND€R Advocate [OPUC] 3. One CC to SRl. P RAJAC,OPAL REDDY Advocate [OpUCl 4. Two CD Copies 1'PK/PSL ; ; I I I I I l I j j HIGH COURT DATED:1 311012025 s 1I ) o C) i I JAil [[2$ 6) }'. n ,/ \ i $l-s.-r.:'r!),':;' { ORDER CRP.No.396 of 2022 CIVIL REVISION PETITION IS DIII}MISSED b \ ,t