N.Balakrinshnan v. lvl.Krishnamurthyl

Sri Ch. Venkat Reddy, S/o. Sri Latchi Reddy Aged about 42 years, Occ Private Employee R/o. Flat No. 301, Balaji Nivas Apartment Bataji Hills, Boduppal, Rangreddy Drstrict. ...Petitioner AND 1 2 The Director of School Education, Directorate of School Education Lakdikapul, Hyderabad. The District Educational Officer, Nalgonda District, Nalgonda

3. The Head h/aster Z. P H. S , Tirumalagiri Anumula (Ha a r Mandal Nalgonda District .Respondents Counsel for the Petitioner: PEARL LAW ASSOCIATES Counsel for the Respondents: GP FOR ARBITRATION The Court made the following: COMMON ORDER THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO CRP.NO .3094 0 F 2023 And cRP.NO.32 o8 oF 2023 COMMON JUDGMENT

1. These Civil Revision petitions are filed aggrieved by the orders in IA.No.1463 of 2022 and IA.No.1464 of 2022, dated 19.07.2023 in AS.No.82 of 2016 passed by learned III Additional Chief Judge, City Civil Court, Hyderabad.

2. IA.No.1463 of 2022 in AS.No.82 of 2016 is filed under section 5 oF Limitation Act to condone the delay of IU2 days in filing the restoration petition under order 41 Rule 19 of Civil procedure Code (for short 'C.P.C.') (vlde IA.No.1464 of 2O22), which were dismissed vrde separate orders dated 19.O7 .2023.

3. The affidavits filed by the petiuoner in IA.No.1463 of ZO22 (Section 5 application) and IA.No.1464 of 2022 (to restore the Appeal) are one and the same. For convenience purpose, the contents of the affidavit in IA.No.1463 of 2022 is taken.

4. The petitioner has contended in the affidavit (IA.No.1463 of 2022) that the Trial Court Advocate has preferred Appeal against the judgment and decree in OS.No.2348 of 2073, dated 19.11.2014. passed by XX lunior Civil, Judge, City Civil Court, Hyderabad. On the advise of ,.__ 2/ro BRMR,I i IRP No.3094 2023 arnl CRP No 32Oa 202.1 the Couns€ I, the mafter was entrusted to Senior A:tvocate by name Sri P.Narasimha Reddy (2223) by obtaining the NOC petitioner was under hope that the Senior Advocatc will take care of the case, he recently cante to know that the Senior Advocate has var,ated the house cum office as he suffered ill_health in COVID_19 and ris phone number rs also not vlorking, his whereabouts were not known t:; anybody in the Iocality and,ln enquiry with the Trial Court Advocate, l,ie came to know that the ApF,eal was dismissed for default on 28.08.2li9. petitioner was under the nope that Senior Advocate will handle .,te case and on his further er quiry, he came to know that Senior Advot: _.te has not filed his vakalath in the Appeal, thereby, nobody appeare. rn his behalf Ultimately, the Appeal dismissed and he has go cd grounds in succeeding the Appeal and there was delay of 1172,d.vs in filing the application for restoration of the Appeal vide lA.No.1464 )f 2022. 5. Seconri respondent has filed similar counte- in both the applications i.e ., in IA.No.1463 ot 2022 and in IA.No.1 464 of 2022. It is contended tha - the Appeal was dismissed for default yrc,:: order dated 28.08.2019 an,J tire resLoration application is filed in the ,,ear_ 2022 and there was no proper explanation for such inordinate delar, of 3 years 4 months in filincT the said application, the petitioner has r,rl mentioned the date of dismissal for default and he is not diligent in prOsecuting the case, he is not entifled for the relief sought in the petit,()n prayed to dismiss both the applications. WAS 3/to IIR\,IR..J CRP.No 3094 2023 and Cl?P. No 3208 2023

6. The Trial Court after hearing the parties has dismissed both the applicatlons i.e., IA.No.1463 of 2022 and IA.No.1464 of 2022 vide separate orders on L9.07 .2023.

7.I. The grounds in both thc CRps are one and the same. For the convenience sake, grounds in CRp.No.3094 of 2023 is taken.

7.2. The Court below committed grave error in mechanically, passinq the order inter-alia observing that the petitioner did not specifically state as to when he obtained the NOC from the Trial Court Advocate to engage a Senior Advocate namely p.Naraslmha Reddy and wrongly assumed and misconstrued that the petitioner was not diligent ln prosecuting the case despite explaining the attendant circumstances which has culminated in resulting inaction on the part of counsel to whom No Objection was entrusted and attributed latches and inaction to the revision petitioner is ill founded and unwarranted and does not stand to logic and totally ignored the cardinal principles of natural justice more specifically the concept of .'audi Alteram partem,,. 7 .3. The Trial Court totally ignored the fact that mere delay and latches in seeking the remedy for vindication of the varuable rights of citizen in india, within the set time frame perse shall not frustrate and extinguish the valuable right recognised under the constitution of India. The Trial_Court has totally rgnored the cardinal pflnciples of law that refusal to condone the delay would result in foreclosing the petitioner from putting forth his cause. 4110 I}RMR,J RP No.3O9.1 2023 and CRP.No.3208 2023

7.4. The petitioner has properly explained the de ,r,, )f lI72 days in his affidavit that he has entrusted the case to the Sr: ilr Advocate but to his misfortune, the Senior Advocate has not filed tr; Vakalath in the Appear whi:h was preferred against os.No.2348 01, 2013, dated 19.17.2014 and the Trial Court has not properly app:..:iated the delay. To substantiate his contention he relied on the decisio,s in the case 1) N.Balakrinshnan Vs. lvl.Krishnamurthyl 2) M.K.prasad Vs, p.Arumugam2 3) Sheo Ra-1 Singh (D) Tr.Lrs., Vs. Union of India & (_)i r3rsj, prayed to set aside both the impugned orders. B. Learned counsel for the respondents submits th;t.:he Trial Court has assigned reasons in dismissing the delay applicatior- . nd restoration application by assigning proper reasons in its order anrJ -o interference is called for, in support oF his contention he relied on re decisions rn the cases of 1) Basa\r'/araj and ors. Vs. The spl. Lanci A(.i.rsrtion officero 2) Y.Srinlvasulu Vs. Smt. prameela and others.

9. Heard both sides, perused the record.

10. iiow ttre point rbr consideration is: whether the r:rrlers passed by the learned Trial Court in IA.No.1463 of 2022 and IA.No 1464 of 2022, dated 19.07.2{123 suffers from any perversity or illegatitv rf so, does it requires interfetrence of this court? ' AIR 1998 sc 3222 ' AIR 2oo1 sc 2497 j 2023 10 scc 53I o ueNu/sc/o8sor 2ot: 'IA.N}.2|2O2O rn CRp.No.900 of 2020, dated 19.10.2020 of the High Court for the State of Telangana, Hva"riOuO s/10 I] II\.1R..I CRl'].No 3Oq{ 2013 and CRI,.No 320li 202J

11. Petitioner has filed a suit in OS.No.234B of 2013 before XX lunior Civrl Judge, City Civil Court, Hyderabad under Order VII Rules I & 2 r/w Section 26 of CpC with a relief that 1) to declare that the plaintiff date of birth is OS.Ot.Igl2 instead of 05.02.1970 2) to direct the defendants therein to arter the praintiff date of birth as 05.O7.1972 instead of 05.02.1970 in all his school records and consequently make all corrections in all his educational records 3) Award costs of the suit 4) and to pass such order or orders as the Court may deems fit and proper in the interest of justice and circu msta nces of the case.

12. Respondents herein who are defendants in the suit have filed their written statement and contested the matter.

13. The learned XX lunior Civil ludge, City Civil Court, Hyderabad after recording the evidence of the parties has dismissed the suit frred by the petitioner on 19.11 2014. 14- The petitioner aggrieved by the judgment and decree in OS.No.2348 of 2073, dated 19.11.2014 filed an Appeal before the Chief ludge, City Civil Court in AS.No.82 of 2015 raising several contentions and grounds.

15. Rules of limitations are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy prompuy. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation I]RMR,.J t :?P.No 30q+ 2023 aIrd ClltP.N0.3208 2023 fixes a life span for such legal remedv for the redress ,. f the legal injury so suffered. Time is precious and the wasted time \,lu d never revisit. During efflu;< of time newer causes would sprout up nc:essitating newer persons to seek legal remedy by approaching the cour:s. So a life span must be fixed for each remedy. Unending period ;r:r- launching the remedy ma! lead to unending uncertainty and consecttential anarchy. Law of limitatron is thus founded on public policy. It is; enshrined in the maxim Interr:st reipubiicae up sit finis iitium (it is for thc rteneral welfare that a perioc be put to litigation). Rules of limitation a-e not meant to destroy the [ight oF the parties. They are meant to sr (] :hat parties do not resort to dilatory tactics but seek their remedy pron ot.ly. The idea is that every lr-.gal remedy must be kept alive for a l€,:tislatively period of tim(_, : See N.Balakrishnan case1.

16. The appellant tried to explain the delay rn filin; tle application for setting aside the ex parte decree as is evident frorr ris application filed under S.5 of the Limitation Act accompanied by hlr, own affidavit. Even though :he appellant appears not to be as vigilant as he ought to have been, y(,t his conduct does not. on the whole, wa-i-,ti:t to casiigate him as an irresponsible Iitigant, He should have been nore vigilant but on his failure to adopt such extra vigilance should not h rl,e been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the applica it,rn For setting aside the ex parte decree, mind the judgment impLrgned, the extent of the property involved a nd tFe stake the Court should have ke1,l ;n I]RI,1R,.] CRP.No 3094 2023 and cRP No 3208 2023 oF the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the Court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex parte decree. To avoid further delay, we have examined the merits of the main appllcation and feel that sufficient grounds exist for setting aside the ex parte decree as well : See M.K.Prasad's case2.

77. The High Court's decision to condone the delay on account of the first respondent's inability to present the appeal within time, for the reasons assigned therein, does not suffer from any error warranting interference : See Sheo Raj Singh's case3

18. On close scrutiny of the affidavit of the petitioner in IA.No.1463 of 2022, he has stated the facts what has transcrjbed in the appellate Court, his bone of contention is that on the advise of the Trial Court Advocate, he has engaged Senior Advocate by name p.Narasimha Reddy (2223) and he handed over the file by obtaining NOC. So that his case will be taken care of by the Senior Counsel, he further averred in the affidavit that due to COVID-19, the Senior Advocate has suffered ill-health and vacated his house cum office, his phone number was also not working and the Senior Counsel whereabouts were not known to anybody in the locality thereby, he enquired with the Trial Court BRMR,.] I liP No 309]_2023 and CRl, No:t208 2023 Advocate. Then he came to know that his Appeal cam,: to be dismissed on 28.08.20 t9

19. Parti,ts cannot be penalised for the mistal,irrs done by the counsel. Irr the present case, petitioner was unr r:r a bona fide impression that Senior Advocate namely p. Narasimha F {lddy (2223) will look after his case by filing vakalath on his behalf. To -ris utter dismay, on his persuasion from the Trial Court Advocate, his Ap oeal came to be dismissed on 28. OB.20 19.

20. in Eirsawaraj.s caser, the Supreme Court olt,,r,rved that the applicant must satisfy the Court that he was pr€,.,r..nted by any "sufFicient cause" from prosecuting his case, and unle:;s a satisfactory explanation rs furnished, the Court should not allow th applicatron for condonation rlf delay. The court has to examine whethe I -he mistake is bona fide or was merel,y a device to cover an ulterrr r purpose. The expression "suFficient cause" shourd be given a riberar ifrterpretation to ensure that substantial justice is done, but only so lonrl ,,rs negligence, inaction or lac:k of bona fides cannot be imputed to the :,,rr_ty concerned, whether or nct suFficient cause has been furnished. 21,. In Y.Srinivasulu,s cases, there was a delay of 3t 2 days in filing the applicatiorr to restore the Appeal. In the above said.iLrdgment, it is observed that second petitioner is an old lady sufferino lr om some old aged ailments but the other petitioners are young persons and are haie and healthy, conduct of the petitioners right from the Tr.ii r gourt seems 9170 I]RMR,J CRt'.No 3tJ94 2023 and CRP.No.32Oa 2023 that they are negligent in persuading the case because the suit itserf was decreed ex parte. The above said decision does not help the case of the respondents in any manner as the facts differ_

22. Delay condonation petition is the discrettonary power to overlook the "time Iimit,' in doing substantial justice to the parties. The core requirement for condonation oF deray is to prove sufricient cause for not filing the apprication within the time. The cause must be genuine, not voluntary or neglrgent delay; as condonation, when exercised judiciously, can prevent injustice and ensure important cases are not lost due to unforeseen circumstances or procedural errors.

23. As stated supra, suit fired by the petitioner is for correction of his Date of Birth which was rejected by the Triar Court against which the petitioner has flled Appeal. To his misfortune, his Appeal came to be dismissed on 28.08.2019. The reasoning of the Trial Court in para Nos.6 to 8 is tncorrect in view of the fact that the Trial Court has not understood the affidavit filed by the petitioner in its entirety. This Court is of the view that the reasons mentioned in the affidavit in IA.Nos.1463 of 2O22 and 1464 of 2022 are genuine and there are no lapses on his part. He was under a bona fide impression that the Senior Counsel engaged by him was Iooking after his case. In spite of his best efforts, he courd not trace out his senior Counser and the reasoning of the Trial Court is perverse and Iiable to be set aside and is accordingly set aside. I I B ttM tt,.l a rtt' No 3094 2023 and Cttt' No 3203 2023

24. In the result, CRP Nos..3094 and 3208 of 2023 are allowed. The impugned orders passed in IA.No.1463 cf 2022 arrri IA.No.1464 of 2022, dated 1,9.07.2023 are set aside. The Appee in AS.No.82 of 2016 is res;tored to its origlnal file and the Trial Court i,r dispose of the same at the earliest by giving opportunity to both sider:;. Consequently, lvliscellaneous applications if an,,,, sfands closed. There shall be no order as to costs. SD/- MOHD.ISMAIL I]EPUTY REGISTRAR a SECTION OFFICER /iTRUE COPY// To,

1. The lllACditional Chief Judge, City Civil Court at Hycerabad ? 9"" CC ,o Pear-l Larnr Assoc-rates, A.dvccate tOpUCi 3. Two CCs to GP for Arbitration, iilgn Court tditne Siate :f Telangana 4 Two CD Sopies NVB/I'SL I I HIGH COURT DATE D:26 10812025 ..- COMMON ORDER ...1 2 5 irtP ?ffi GRP.No.3094 of 2023 And CRP.No.3208 of 2023 ALLOWING THE BOTH CIVIL REVIS!C N PETITIONS \e{ 1