C.Laxmaiah v. Ms.Cherukuri Benefit Fund Ltd.,
THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI Civil Revision Petition No.4114 of 2016 ORDER:
This Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 ('the Code', for short) is filed by the unsuccessful petitioner/ defendant assailing the orders dated 27.02.2016 of the learned Principal Senior Civil Judge, Mahabubnagar, passed in I.A.No.8 of 2015 in O.S.No.44 of 2005 filed under Section 5 of the Limitation Act requesting to condone delay of (2822) days in filing the petition under Order IX Rule 13 of the Code, requesting to set aside the ex parte decree dated 14.09.2007. 2.
The facts, which are necessary to be stated as a prelude to this order, in brief, are as follows:
The plaintiff/ respondent herein (hereinafter, 'plaintiff') brought the suit against the defendant/ petitioner herein (hereinafter, 'defendant') for specific performance of an agreement of sale dated 04.06.1998 in respect of a land of a total extent of Ac.6.09 guntas situated at Venkataraopet, Talkondapally Mandal of Mahabubnagar District inter alia contending that the defendant offered to sell the said agricultural land to the plaintiff for a total consideration of Rs.93,375/ - and that the plaintiff had paid Rs.
55,000/ - as earnest money and that the defendant having received the same had duly executed the suit agreement of sale and further handed over the title deeds in respect of the said property to the plaintiff and that on failure of the defendant to perform his part of the contract, the plaintiff is constrained to file the suit for specific performance. The defendant having entered appearance failed to file his written statement and had remained ex parte. Later, the suit was decreed ex parte on 14.09.2007. Thereafter, the defendant filed an application seeking to set aside the ex parte decree.
filing the said petition, the defendant further filed the subject application for condonation of the said delay.
3.
The case of the defendant in support of the request for condonation of delay, in brief, is as follows:
The plaintiff is known to the defendant as the plaintiff's father, Ch.Rama Rao, used to work as Assistant Manager in State Bank of India, Chandrayanagutta Branch of Hyderabad, where the defendant worked as Armory Guard. The father of the plaintiff used to give hand loans to some Class IV employees working in the Bank. As such, the defendant obtained a loan of Rs.13,000/ - through Canara Bank cheques. At that time, the father of the plaintiff obtained blank cheques with signatures of this defendant and also land passbooks as guarantee. This defendant discharged major portion of the said loan amount and a small amount remained due and payable. While so, the plaintiff's father got issued a legal notice through the plaintiff's mother stating that the cheque issued by the defendant was dishonored and demanding payment of Rs.9,405/ -.
After a notice was got issued by the defendant, a criminal case was instituted under Section 138 of the Negotiable Instruments Act. While this defendant was resisting that criminal case, the father of the plaintiff forcefully obtained his signatures on two blank stamp papers and on some white papers through Srikar Reddy and Srinivas. The signatures were accordingly obtained on the said papers while the defendant was on night duty at State Bank of India, Chandrayanagutta Branch. The plaintiff pressed into service the blank signed stamp papers and white papers and filed the false suit for specific performance against the defendant though the defendant had never agreed to sell his property and never entered into any sale transaction agreeing to sell his property. In the said circumstances, the ex parte decree is liable to be set aside.
On receipt of summons in the said suit, the defendant engaged Sri K.B.Ramanna Dora as his counsel. The plaintiff and his father promised to withdraw the suit on payment of the amount due.
paid the amount due as directed by the plaintiff. The plaintiff having collected huge amount from the defendant failed to keep up his promise in regard to settlement of the suit and proceeded further with the prosecution of the suit and obtained an ex parte decree. Even one month before the defendant was set ex parte in the suit; the plaintiff collected some amount from the defendant. Taking advantage of the defendant's helplessness the plaintiff committed acts of cheating, extortion, and breach of Trust. Hence, the defendant lodged a criminal complaint on 14.06.2014 against the plaintiff, his parents and others before the police of Vanasthalipuram. On account of the promise made by the plaintiff that he would withdraw the suit, the defendant paid huge amount to the plaintiff and did not prosecute his defence.
The defendant believed the version of the plaintiff that he would withdraw the suit. He was under the impression that the plaintiff has withdrawn the suit. However, without withdrawing the suit, the plaintiff had obtained an ex parte decree. In the circumstances, the delay in seeking to set aside the ex parte decree had occasioned and the said delay is not due to intentional and wanton reasons, but had occasioned for the above said reasons. 4.
The case of the plaintiff, in brief, is as follows: The material allegations in the affidavit of the defendant filed in support of the petition are all false. The said allegations are intended for the purpose of the present petition. The allegation that the plaintiff's father used to lend money to some staff members of Class IV of the bank and that the defendant obtained a loan of Rs.13,000/ - from the plaintiff's father through Canara Bank, cheques and that at that time, his signatures were obtained on blank cheques and his land passbooks were obtained as guarantee are false. The further allegation that he discharged major part of the amount and that a small portion remained unpaid are all false. If the contentions of the defendant are true, he ought to have prosecuted his defence in the suit. On service of summons in the suit, he entered appearance through an Advocate, but failed to
file his written statement and allowed the suit to be decreed ex parte. He did not come forward with any of his contentions till the disposal of the execution petition filed pursuant to the decree granted in the suit. The cheque bounce transaction has nothing to do with the suit transaction. The dismissal of the criminal case is in no way connected to the present suit. The allegations that the plaintiff's father forcefully obtained the signatures of the defendant on two blank stamp papers and some white papers through Srikar Reddy and Srinivas and that the defendant pressed into service the said stamp papers and white papers for filing the said suit for specific performance are all false. The agreement is of the year 1998. The suit is instituted in the year 2005. The ex parte decree was granted on 14.09.2007.
The present petition for condonation of delay was filed on 08.07.2014. After the suit was decreed, the execution petition was filed for obtaining registered sale deed. The plaintiff and his father never promised to withdraw the suit on payment of any amount. No amount was in fact paid by the defendant. Therefore, promise for withdrawal of the suit on payment of money and the question of withdrawal of the suit, therefore, do not arise for consideration. The defendant kept quiet for a long time and had slept over his rights and filed the present petition to harass the plaintiff. The long delay of (2823) days in filing the application to set aside the ex parte decree is not at all explained. A story is created, but, no sufficient cause is shown for condonation of the abnormal delay. The grounds urged are untenable.
The petition is misconceived and not maintainable. After the suit was decreed, the execution petition was filed after a gap of more than two years and sale deed was also executed by the Court in favour of the plaintiff/ DHr pursuant to the ex parte decree in the suit for specific performance. No cause much less sufficient cause was shown for condonation of delay. The petition is filed by suppression and mis-representation of facts. The petition is liable for dismissal.
5.
At the time of enquiry before the trial Court no oral and documentary evidence was adduced. On merits the trial Court dismissed the petition of the defendant. Aggrieved thereof the defendant filed this revision. 6.
At the hearing before this Court, the learned counsel for both the sides advanced arguments in line with the pleadings of the respective parties. 7.
I have given earnest consideration to the facts and submissions. 8.
Before proceeding further, it is profitable to refer to the settled legal principles in regard to the issue concerning codonation of delay. 'The statutory provision mandates that while considering the applications for condonation of delay, the applicants are required to show 'sufficient cause' for condonation of such delay. Condonation of delay is a matter of discretion of the Court. The words 'sufficient cause' under Section 5 of the Limitation Act should receive liberal construction so as to achieve substantial justice. However while condoning the delay; the Court should not forget the opposite party altogether. A liberal approach is to be adopted in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the limitation Act.
The concept of such a liberal approach cannot be equated with doing injustice to the other party. The court cannot condone the delay in a case where the Court concludes that there is no justification for the delay. The discretion has to be exercised within the reasonable bounds known to the law. Whims or fancies, prejudices or predilections could not form the basis for exercising the discretionary power. When the delay is directly a result of negligence or default or inaction of a party, such delay cannot be condoned on mere asking of that party. When an applicant makes an incorrect statement in an application seeking condonation of delay, the Court ought to refuse to condone such delay or inordinate delay.
but the delay that deserves to be condoned is a long delay, such delay is generally condoned by imposition of adequate costs as compensation to offset the delay in hearing and disposal of the case. Length of delay is no matter and the acceptability of the explanation is the only criterion. If there is no acceptable explanation, sometimes a delay of shorter length may also be uncondonable whereas in certain other times, the delay of a very long range can be condoned provided sufficient cause is shown.' The expression 'sufficient cause' is a cause for which the defendant could not be blamed. [Vide the decision of the Supreme Court in Parimal v. Veena1]. In this decision, it was also held as follows: 'However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion it has to be exercised judiciously.'
9.
The defendant admittedly received the suit summons and entered appearance in the suit and later remained ex parte without even filing his defence. In the affidavit filed in support of the application for condonation of delay, he pleaded his defence which he ought to have pleaded in the written statement in the suit. He further pleaded about a transaction regarding a bounced cheque and a criminal case filed on the basis of the said cheque and other aspects, though not relevant for consideration in the present context. Be that as it may. He also stated in his affidavit that the plaintiff and his father promised to withdraw the suit on payment of the amount due and that accordingly, he paid the amount due as directed by the plaintiff and that the plaintiff having collected huge amount failed to keep up his promise in regard to settlement of the suit and proceeded further with the prosecution of the suit and obtained an ex parte decree and that even one month before he was set ex parte in the suit, the plaintiff 1 AIR 2011 SUPREME COURT 1150
collected some amount from him and that taking advantage of his helplessness the plaintiff committed acts of cheating, extortion, and breach of Trust and that he remained ex parte believing that the plaintiff would withdraw his suit as per the promise made, but, the plaintiff did not keep up his promise. His submissions that he contested the criminal case and that he lodged a criminal complaint on 14.06.2014 against the plaintiff, his parents and others before the police of Vanasthalipuram would also show that he knows his rights and obligations. A plain consideration of his pleadings would show that he did not state any relevant and material details constituting the 'sufficient cause'.
He did not state as to when he came to know about the ex parte decree and did not also explain the long delay from the date of such knowledge till the application is filed before the trail Court. If really there was some settlement at a time when the suit was pending, nothing prevented him from filing his written statement and prosecuting his defence while simultaneously pursuing the efforts for settlement and getting the suit withdrawn after such settlement. As rightly contended by the plaintiff no prudent person against whom a suit for specific performance was filed in respect of his property would keep quiet after paying huge money on a simple promise that the suit would be withdrawn.
If the plaintiff failed to keep up his promise and obtained an ex parte decree as alleged by the defendant, nothing prevented him from either preferring an appeal or filing an application for setting aside the ex parte decree within a reasonable time. However, he did not do so. The defendant ought to have realized at least after the suit was decreed or after some reasonable time thereafter that his alleged efforts for compromise did not fructify. But, the defendant deliberately and wantonly did not either prefer an appeal or promptly file an application to set aside the ex parte decree. There is no iota of proof or semblance of material brought on record to show that there were ever any talks for compromise between the parties and that the plaintiff paid huge amounts.
paid huge amount during the pendency of suit even without obtaining a receipt cannot be countenanced. As rightly contended by the plaintiff it appears that the defendant consciously failed to take steps to prefer an appeal or the application to set aside the ex parte decree within the time allowed under law. As per settled law, when the delay is directly a result of negligence or default or inaction of a party, such delay cannot be condoned on mere asking of that party. When an applicant makes a bald statement in an application seeking condonation of delay and fails to substantiate the same, the Court ought to refuse to condone such delay or inordinate delay.
Further, it is trite to also note that a reading of the affidavit filed in support of the petition would lay bare that the petition is filed in a casual manner without giving any explanation, much less a valid explanation, and without showing sufficient cause for condonation of the long delay. Having had knowledge of the pendency of the suit, the defendant had failed deliberately to attend before the trial Court on the date of hearing or on other subsequent dates to which the matter was adjourned and had thus allowed the suit to be decreed ex parte.
In the affidavit filed in support of the petition, necessary ingredients are noticeably absent and the affidavit filed in support of the petition lacks in material details, which are vital for consideration and there is no explanation at all for the long delay from the date of the decree and till the date the application to set aside the ex parte decree was filed. The fact of the matter is that the plaintiff even obtained a registered sale deed pursuant to the ex parte decree for specific performance by executing the said decree.
In the facts and circumstances of the case, the delay cannot be condoned when the defendant who is seeking condonation of delay had failed to demonstrate that the cause that had prevented him from pursuing the remedy had sprouted before the expiry of limitation and continued and prevented him from taking necessary steps till the date the application is filed.
In the decision in Esha Bhattacharjee V/s Managing Director of Raghunathpur Nafar Academy and others2, the Supreme Court having referred to the decisions and discussed the principles related to the issue pertaining to the condonation of delay culled out the broad principles and gave further following guidelines:
(a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
(b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.
In the cited decision, it was held that neither leisure nor pleasure has any room while one moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice. It was also held that Court must keep itself alive to the concept of exercise of judicial discretion that is governed by of rules of reason and justice. In Brijesh Kumar and ot hers V/s St at e of Haryana and ot hers3 the Supreme Court held thus:
" The courts should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. However the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the Court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone." " It is also a well settled principle of law that if some person has taken a relief approaching the Court just or immediately after the cause of action had arisen, other persons cannot take benefit thereof approaching the court at a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person."
The ratio in the cited case squarely applies to the facts of the instant case. On the above analysis this Court finds that no cause much less sufficient cause was shown for condonation of the long delay of nearly 2 2014 (1) ALD 21 (SC) 3 2014 (4) ALD 1 (SC)
(8) eight years and that the delay cannot be condoned as there is no justification for the delay and that in the facts and circumstances of the case, the Court below is justified in dismissing the application filed by the defendant for condonation of delay and that there is no merit in the revision.
10.
In the result, the civil revision petition is dismissed. Pending miscellaneous petitions, if any, in this revision shall stand dismissed. There shall be no order as to costs. _______________________ M. SEETHARAMA MURTI, J 04th November, 2016 RAR