Judgment:
ORDER
V.V.S. Rao, J.
1. The respondent herein (hereafter called, the plaintiff) filed the suit being O.S. No. 325 of 2000 on the file of the Court of the Principal Junior Civil Judge, Ranga Reddy District at L.B. Nagar, Hyderabad. The suit against the petitioner herein (hereafter called, the defendant) is for specific performance of agreement of sale, dated 25.03.1982 under which the defendant agreed to sell land admeasuring 2,061 square yards to the plaintiff. After receiving the suit summons, the defendant appeared before the Court through her son as 'she is an old lady unable to appear before the Court'. The matter was adjourned for written statement from time to time till November, 2001. As the case was not prosecuted properly by the defendant or her son, the trial Court passed an ex parte decree on 16.11.2001. Plaintiff's counsel issued a notice in newspapers on 31.05.2003 for the information of the general public about the decree passed by the civil Court. On 30.06.2003, the defendant filed interlocutory application under Order IX Rule 13 of Code of Civil Procedure, 1908 (CPC) seeking to set aside the ex parte decree, dated 16.11.2001. As there was a delay, she also filed I.A. No. 2118 of 2003 under Section 5 of the Limitation Act, 1963 praying the lower Court to condone the delay of 572 days in filing the petition to set aside the ex parte decree. The same was dismissed by the trial Court on 15.02.2006. The petitioner, therefore, filed initially a revision petition under Section 115 of CPC. Later, by reason of the orders passed by this Court in C.R.P.M.P. No. 5706 of 2006, the same is converted as one under Article 227 of Constitution of India.
2. Learned senior counsel for the petitioner/defendant strenuously contends that the lower Court committed error in rejecting the application under Section 5 of the Limitation Act. He contends that the defendant properly explained the delay and the lower Court failed to see that such delay was not caused due to negligence on the part of the defendant. He would nextly contends that the defendant also filed I.A. No. 2119 of 2003 seeking leave of the trial Court to file written statement, that when the said I.A., was rejected, the defendant filed C.R.P. No. 54205 of 2003, which was allowed by this Court, by reason of which, the written statement filed by the defendant is very much part of the record. Therefore, he would urge that the observations made by the trial Court in this regard are ex facie not warranted. Per contra, learned Counsel for the respondent/plaintiff submits that the defendant made bald and vague allegations in the affidavit accompanying I.A. No. 2118 of 2003, that she did not produce any evidence nor explained sufficient cause for such huge delay in filing application to set aside ex parte decree. He also points out that in the affidavit accompanying I.A. No. 2118 of 2003, para 3 contained blanks, which would lead to an inference that these blanks were filled up later to bring in tune with the evidence. He further urges that the plaintiff obtained decree in 2001 and filed E.P. No. 698 of 2005, which is pending. If the ex parte decree is set aside now, the members of the plaintiff society would suffer injustice. The background of the case and the rival submissions would throw up only question for consideration as to whether in exercise of powers under Article 227 of Constitution of India, this Court can condone the delay of 572 days in filing an application under Order IX Rule 13 of CPC seeking to set aside ex parte decree, dated 16.11.2001.
3. The method and manner of exercising powers in condoning delay under Section 5 of the Limitation Act by the Court of original/primary jurisdiction as well as superior Courts is now well settled. An elaborate reference to all the case laws may not be necessary. Suffice it to refer to the Judgment of the Supreme Court in N. Balakrishnan v. M. Krishna Murthy : 2008(228)ELT162(SC) , and the decision of Division Bench of this Court in State of Andhra Pradesh v. Sayanna : 2000(4)ALD215 . In Balakrishnan (supra), the Supreme Court laid down as under.
4. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. 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. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the lower Court.
The Supreme Court also observed that the words 'sufficient cause' under Section 5 of the Limitation Act should receive liberal construction so as to advance substantial justice. In so doing, the opposite party should not be forgotten. It is apposite to extract the following from the Judgment of the Supreme Court: But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss.
5. In Sayanna (supra), the Division Bench was dealing with the question whether separate yardstick be applied while dealing with the petitions filed by the State for condonation of delay in preferring appeal. The Division Bench reviewed the entire case law on the subject and summarised the principles as under:
(1) The expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice.
(2) 'Sufficient cause' should be adjudged on considerations of pragmatism and justice oriented approach rather than technical insistence of explaining every day's delay.
(3) (a) Generally, delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay.
(b) In every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor.
(4) The length of delay is no matter. The acceptability of the Explanation is the only criterion. Sometimes, even short delay may not be condoned for want of acceptable explanation whereas in certain other cases, the delay of very long range can be condoned if the explanation is satisfactory.
(5) Limitation cannot be extended merely on equitable grounds.
The superior Court ordinarily should not disturb the finding and order of the lower Court if delay is condoned as justified by sufficient cause. But, if the lower Court declines to condone the delay finding the explanation of sufficient cause untenable, the superior Court should consider the tenability of the sufficient cause and reasons pleaded in seeking condonation of delay. While doing so, the superior Court must ignore the order of the lower Court and bestow fresh consideration. Of course, the same principles of appreciating the pleadings, the evidence on record and the method and manner of drawing inferences from the conduct of the parties must inform the fresh consideration by the superior Court.
Having regard to the settled legal position, this Court has reconsidered after due appreciation of all facts and circumstances, the question whether the defendant has properly pleaded and proved 'sufficient cause' for condonation of inordinate delay of about two years in filing the application to set aside ex parte decree. Be it noted that the fact of filing written statement by defendant, the fact of participation of the defendant in the proceedings for some time and the fact that substantial trial has been conducted are no grounds to bar the jurisdiction under Rule 6 of Order IX of CPC to proceed against the defendant and pass ex parte decree nor these circumstances mitigate in favour of the defaulting party while considering application under Section 5 of the Limitation Act. Though the learned senior counsel sought to rely on the fact that the lower Court received the written statement pursuant to the orders of this Court in C.R.P. No. 5425 of 2003, dated 31.12.2003, the same is not pursued much except in support of the contention that the lower Court was in error in observing that the defendant did not file the written statement. An observation made by the lower Court in ignorance of an insignificant event does not by itself constitute a grave error apparent on the face of record requiring correction by this Court.
In her affidavit filed along with I.A. No. 2118 of 2003, the petitioner alleged that she being an elderly lady, entrusted the matter to her son, that her son appeared before the Court on 28.01.2001 when the lower Court directed filing of written statement and that thereafter she fell sick and for that reason, she was hospitalised for three months from 28.02.2001 to 30.05.2001. According to her, she only came to know about passing of the ex parte decree when one of her relatives Sambasiva Rao came to her on 28.06.2003 to enquire about her health and told her about the notice published in the newspapers on 31.05.2003. In paragraphs 2 and 3 of the affidavit in support of I.A. No. 2118 of 2003, which contain crucial allegations, there are corrections and the earlier typed dates were struck off and dates were mentioned in the handwriting or dates were changed and overwriting is also found. This would certainly cast a doubt. Secondly, as rightly observed by the lower Court, she did not produce any iota of evidence in support of her allegation that she was sick for about three months. When her application was dismissed by the lower Court, she filed the present revision petition on 02.06.2006. The Registry returned the case papers on 03.06.2006 to enable the learned Counsel to file all relevant papers. Presumably, at that stage, the xerox copies of the affidavits ofI. Sambasiva Rao sworn and signed on 09.08.2006 and notarised on the same day were filed in the Court along with the papers on 10.08.2006. This itself would create a doubt about the veracity of the statement of the petitioner.
In the opinion of this Court, even if the superior Court is free to consider the cause shown for the delay, at the stage of revision, the person seeking condonation of delay by the superior Court, cannot be permitted to come with evidence, which is not produced before the lower Court. As noticed herein the affidavit was obtained from Sambasiva Rao, after filing the Civil Revision Petition, and therefore, much importance cannot be attached to the same. The plaintiff is the co-operative housing society, which espouses the cause of its members. It has obtained ex parte decree on 16.11.2001 and while considering the application of the defendant under Section 5 of the Limitation Act as well as under Order IX Rule XIII of CPC, this cannot be ignored. The lower Court has exercised sound discretion in refusing to condone the delay of 572 days in filing application to set aside the ex parte decree.
In the result, the Civil Revision Petition is devoid of any merit and is accordingly dismissed. No costs.