Delay of 14 years condoned in filing set aside exparte decree = It is true that there is an inordinate delay of 5082 days in filing the application under Order 9 Rule 13 of CPC. However the law is well settled that length of delay is no matter, but the acceptability of the explanation is the only criterion [ vide (1998) 7 SCC 123 (N. BALAKRISHNAN v. M. KRISHNA MURTHY) ]. It is also a well-settled principle that the expression ‘sufficient cause’ under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice and what constitutes sufficient cause always depends on the facts and circumstances of a particular case. Hence the application need not be rejected merely on the ground of inordinate delay, but the test shall be whether sufficient cause is made out for the delay.However it is the specific case of the defendants that the said advocate who was engaged by the defendant No.2 died in a road accident. It was pleaded by the defendants that after the death of the defendant No.2, the other defendants had no knowledge about the suit proceedings and that they came to know about the ex parte decree only on 26.7.2009 when they received the notices issued by the Tahsildar on the application filed by the plaintiffs for implementation of the decree and immediately thereafter the applications for setting aside the ex parte decree and condonation of delay were filed within one month from the date of knowledge.In fact this is a case where the defendants filed two separate applications; one for setting aside the ex parte decree and the other for condonation of delay. The explanation offered by the defendants that they had no knowledge about the suit proceedings being the same for both the applications, the Court below cannot be said to have committed any error in allowing both the applications by a common order.

THE HON’BLE Ms. JUSTICE G. ROHINI

CIVIL REVISION PETITION No.2380 OF 2011

10/08/2011

V. Linga Reddy and 2 others

V.Ram Reddy and 5 others

Counsel for the petitioners : M/s. Sharad Sanghi & Associates

Counsel for the respondents : Sri R. Raghunandan

ORDER:

The Revision petitioners are the plaintiffs in O.S.No.7 of 1993 on the
file of the Court of the Junior Civil Judge, Ibrahimpatnam, R.R. District. The
suit was filed for declaration of title in respect of the plaint D-schedule
property as well as for perpetual injunction. On receipt of suit
summons, appearance was entered on behalf of the defendants on 3.3.1993.
However as they failed to file the written statement, the defendants were set
ex parte on 9.2.1994 and thereafter by judgment dated 23.08.1995, the suit was
decreed as prayed for with costs. Long thereafter, the respondents
herein, who are the defendants and the legal representatives of some of the
deceased defendants, filed I.A.No.413 of 2009 under Order 9 Rule 13 of C.P.C.
to set aside the ex parte decree, dated 23.08.1995. They also filed I.A.No.412
of 2009 under Section 5 of the Limitation Act, 1963 to condone the delay of 5082
days in filing the application under Order 9 Rule 13 of C.P.C. After hearing
both the parties, the Court below by order dated 27.04.2011 allowed both
I.A.Nos.412 & 413 of 2009 subject to payment of costs of Rs.3,000/-.
Aggrieved by the said common order, dated 27.04.2011, the present Civil Revision
Petition is filed by the plaintiffs.
I have heard the learned counsel for both the parties and perused the
material available on record.
The learned counsel for the petitioners vehemently contended that the
Court below committed a grave error in condoning the inordinate delay of 14
years accepting the vague plea that the defendants came to know about the decree
only when the plaintiffs filed an application before the Tahsildar for mutation
of the names. While submitting that in view of the admitted fact that the suit
summons were duly served on the defendants the burden was very heavy on the
defendants to prove that they were prevented by sufficient cause from appearing
when the suit was called for hearing, the learned counsel further contended that
the defendants had miserably failed to discharge the burden and therefore the
Court below ought to have dismissed the applications. In support of his
submission, the learned counsel relied upon a decision of the Supreme Court in
PARIMAL v. VEENA1.
It is true that there is an inordinate delay of 5082 days in filing the
application under Order 9 Rule 13 of CPC. However the law is well settled that
length of delay is no matter, but the acceptability of the explanation is the
only criterion [ vide (1998) 7 SCC 123 (N. BALAKRISHNAN v. M. KRISHNA MURTHY) ].
It is also a well-settled principle that the expression ‘sufficient cause’ under
Section 5 of the Limitation Act should receive a liberal construction so as to
advance substantial justice and what constitutes sufficient cause always depends
on the facts and circumstances of a particular case. Hence the application
need not be rejected merely on the ground of inordinate delay, but the test
shall be whether sufficient cause is made out for the delay.
In the instant case, there are altogether 7 defendants. The defendant
No.2 is the husband of the defendant No.1 and father of the defendants 3 to 7.
Admittedly the suit summons were served on them and appearance was entered on
their behalf by an advocate S. Vishnuvardhan Reddy. However it is the specific
case of the defendants that the said advocate who was engaged by the defendant
No.2 died in a road accident. It was pleaded by the defendants that after the
death of the defendant No.2, the other defendants had no knowledge about the
suit proceedings and that they came to know about the ex parte decree only on
26.7.2009 when they received the notices issued by the Tahsildar on the
application filed by the plaintiffs for implementation of the decree and
immediately thereafter the applications for setting aside the ex parte decree
and condonation of delay were filed within one month from the date of knowledge.

The death of both the defendant No.2 and the counsel who entered
appearance on behalf of the defendants is not in dispute. Though the plaintiffs
opposed the applications by filing a counter, except contending that there was
an inordinate delay of more than 5000 days and that having engaged the
advocate, it was the duty of the defendants to enquire from time to time as to
the suit proceedings, there was no allegation of deliberate inaction to
gain time.

Having regard to the facts and circumstances of the case, the Court below
while recording its satisfaction as to the sufficiency of the explanation for
the whole period of delay, thought it fit to condone the delay on imposing
costs. The said discretion exercised by the Court below on application of mind
to the facts and circumstances of the case, in my considered opinion, cannot be
termed as arbitrary or perverse warranting interference by this Court. As held
in N. BALAKRISHNAN v. M. KRISHNA MURTHY [ (1998) 7 SCC 123 ] once
the Court accepts the explanation as sufficient, it is the result of positive
exercise of discretion and normally the superior court should not disturb such
finding, much less in revisional jurisdiction, unless the exercise of discretion
was on wholly untenable grounds or arbitrary or perverse.
In PARIMAL’S case (1 supra) relied upon by the learned counsel for the
petitioner, the Apex Court was dealing with a case where the respondent
refused to receive the summons and thereafter the summons were served by paper
publication. In spite of that, the respondent remained ex parte resulting in ex
parte judgment. Four years thereafter, the respondent moved an application under
Order 9 Rule 13 of CPC alleging that the ex parte decree had been obtained by
fraud and collusion with the postman etc. The ratio laid down in the said
decision on interpretation of the expression ‘sufficient cause’ under Order 9
Rule 13 of CPC, particularly in the light of the proviso to Rule 13 has no
application to the facts and circumstances of the case on hand.
The other decision cited by the learned counsel for the petitioner i.e., S.
SEKHAR BABU v. Y. RAMAKRISHNA REDDY2 has also no bearing on the issue involved
in this case. In fact this is a case where the defendants filed two separate
applications; one for setting aside the ex parte decree and the other for
condonation of delay. The explanation offered by the defendants that they had
no knowledge about the suit proceedings being the same for both the
applications, the Court below cannot be said to have committed any error in
allowing both the applications by a common order.
For the aforesaid reasons, the interference by this Court is not warranted
and accordingly the Civil Revision Petition is dismissed. No costs.
______________
G.ROHINI, J.

Dt. 10.08.2011

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