Nasllvelli Narasamma vs Golli Jayamma,Nallavelli Janagamma on 27 March, 2025

Telangana High Court

Nasllvelli Narasamma vs Golli Jayamma,Nallavelli Janagamma on 27 March, 2025

Author: G.Radha Rani

Bench: G.Radha Rani

       THE HONOURABLE DR.JUSTICE G.RADHA RANI
                       I.A. No.1 of 2025
                            In/and
            CIVIL REVISION PETITION No.718 of 2019

ORDER:

This Civil Revision Petition is filed by the petitioners-defendant

Nos.1, 3 to 6 aggrieved by the order dated 16.04.2018 in I.A. No.121 of

2015 in O.S. No.99 of 2011 passed by the Senior Civil Judge, Nalgonda.

2. The respondent No.1-plaintiff filed O.S No.99 of 2011 for

partition of the suit schedule properties and to allot 1/3rd share to her in

the suit lands. An ex parte decree was passed on 19.07.2013. The

defendant Nos.1 to 6 filed an application to set aside the ex parte decree

and as there was a delay of 197 days in filing the petition, filed I.A

No.121 of 2015 under Section 5 of the Limitation Act to condone the

delay in filing the petition under Order IX Rule 13 of CPC. The said

application filed under Order IX Rule 13 of CPC was numbered as I.A.

No.1417 of 2016 and a common order was passed in both the petitions

by the learned Senior Civil Judge, Nalgonda, dismissing the

applications. Aggrieved by the same, the defendant Nos.1, 3 to 6

preferred this revision against the dismissal of the condone delay

application vide I.A. No.121 of 2015.

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CRP No.718 of 2019

3. Heard Sri K. Sreenivas, learned counsel for the petitioners and

Sri J. Suresh Babu, learned Counsel for the respondent No.1.

4. Learned counsel for the petitioners submitted that defendant

No.2 in O.S. No.99 of 2011 – petitioner No.2 in I.A. No.121 of 2015

was suffering with blood cancer and the other petitioners were forced to

stay at the hospital and they were in distress, as such, they could not file

the written statement within the stipulated period. The petitioners filed

their written statement along with the ex parte decree set aside petition

and delay condonation petition to prove their bonafides. The trial court

ought to have considered the explanation given by the petitioners for the

delay and ought to have set aside the ex parte decree. The suit was filed

for partition and substantial rights of the parties were involved. The trial

court failed to see that liberal construction ought to have been given

while considering the delay condonation petitions. An opportunity ought

to have been given to the parties to enable them to contest the matter, as

the matter could be decided on merits. The approach of the trial court in

dismissing the petition was not proper and prayed to set aside the

impugned order.

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CRP No.718 of 2019

5. The learned counsel for the respondent No.1, on the other

hand, contended that no document was filed by the petitioners before the

trial court in support of their contention that the defendant No.2 was

suffering with blood cancer. To cover up their lacunae, they filed the

documents at this stage. No appeal was preferred against dismissal of

I.A. No.1417 of 2016. The final decree proceedings were pending

before the trial court. The Advocate Commissioner’s report was also

filed and the same was posted for calling objections on the said report.

Even though the defendant No.2 died, other petitioners ought to have

taken care of the matter and relied upon the judgment of the Hon’ble

Apex Court in Estate Officer, Haryana Urban Development

Authority and another v. Gopi Chand Atreja 1 and of the erstwhile

High Court of Andhra Pradesh in Jangana Rajendra Kumar v. Basava

Srinivas 2.

6. The learned counsel for the petitioners in his reply submitted

that in I.A. No.121 of 2015, affidavit was filed by the petitioner No.2

therein (defendant No.2) himself stating that he was suffering with

blood cancer and was admitted in the hospital for the last two years and

the other petitioners being his family members were attending him and
1
2019 (3) ALD 170 (SC)
2
2013 (2) ALD 273
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CRP No.718 of 2019

also held up with him in the hospital. He further submitted that the

defendant No.2 died on 24.09.2014. The petitioners herein being the

mother, younger brother and the married sisters of the deceased

defendant No.2, due to their illiteracy could not file the relevant

documents before the trial court in proof of the treatment of defendant

No.2. The trial court ought not to have numbered the petition filed

under Order IX Rue l3 of CPC until the condonation of delay petition

was allowed and relied upon the judgment of the erstwhile High Court

of Andhra Pradesh in S. Viswanath Reddy v. N. Venkateswara Reddy

and others 3 on the aspect that the powers of the High Court under

Section 115 of CPC were such that to set right the matters which were in

controversy and for rendering proper justice, the court should take note

of such an order passed which was not challenged and is competent to

decide the matter to set right the controversy once for all. He also relied

upon the judgment of the erstwhile High Court of Andhra Pradesh in

Vemuru Ramasubbayya v. Bollu Sarojini and another4 on the aspect

that the High Court is entitled, in a proper case, to interfere in revision

even without an application to it by the party interested.

3
1997 (5) ALD 686
4
1971 (1) An.W.R.332
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CRP No.718 of 2019

7. Learned counsel for the petitioners filed I.A. No.2 of 2025 in

this CRP to receive the documents i.e. the death certificate of deceased

defendant No.2 and the medical records in proof of his treatment at

Yashoda Hospital.

8. Considering that the defendant No.2 himself filed an affidavit

before the trial court in I.A. No.121 of 2015 stating that he was suffering

with blood cancer and was undergoing treatment and that the petitioners

could not contact their counsel due to his ill health as they were held up

with him in the hospital and the said affidavit was filed on 24.02.2014

and he subsequently died on 24.09.2014 and the said plea was not

something new created by the petitioners at this stage, it is considered fit

to allow I.A. No.1 of 2025 permitting the petitioners to file the death

certificate of defendant No.2 and his medical record issued by Yashoda

Hospital, to be brought on record.

9. As seen from the impugned order passed by the trial court in

I.A. No.121 of 2015 in O.S. No.99 of 2011, the trial court dismissed the

said application on the ground that the petition was silent as to when the

petitioner No.2 suffered with blood cancer, when he was admitted in the

hospital and when he was discharged. The petition was silent about the
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date when the petitioners came to know about passing of the ex parte

decree in the main suit. Atleast one of the petitioners ought to have

approached the counsel to know the stage of the case. The petitioners

were not vigilant in prosecuting the matter. The delay of 197 days was

not properly explained.

10. The documents filed by the petitioners in this CRP would

disclose that the defendant No.2 was suffering with blood cancer and

had taken treatment at Yashoda Hospital during the year 2013 and died

with the said ailment on 24.09.2014. The petitioner No.1 was the

mother of the deceased defendant No.2, who was aged 60 years and the

petitioner Nos.3 to 5 in this CRP were married sisters of defendant No.2.

As such, these women might not be well versed with the court matters

or might not be in contact with their counsel for giving instructions to

him for filing their written statement. The petitioner No.2 in this CRP

was their younger brother and the only male person, who might be

looking after his family and looking after his brother in the hospital

during the said period. The delay sought to be condoned was also not

inordinate, but only 197 days. The suit was filed for partition.

Substantial rights of the parties were involved. The documents filed

would disclose that there is sufficient cause for condoning the delay. In
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order to prove their bonafides, the petitioners also filed their written

statement along with the petition to set aside the ex parte decree. As

such, the trial court ought to have allowed the application, as the

Hon’ble Apex Court in several cases stated that the word ‘sufficient

cause’ has to be construed liberally. In Collector, Land Acquisition,

Ananthnag v. Mst. Katiji & Ors. 5 , the Hon’ble Apex Court

emphasized that refusal to condone the delay should not result in

dismissing a meritorious matter. It further observed that ordinarily a

litigant does not benefit from filing an appeal late. It was not necessary

to explain every days delay and if the delay was not deliberate it should

be condoned, especially if refusing to condone the delay would result in

throwing out a meritorious matter. A liberal approach was advocated in

construing the existence of sufficient cause in considering the

applications for condonation of delay, emphasizing the importance of a

justice oriented approach and need to avoid technicalities from

overriding the merits of a case.

11. The citations relied on by the learned counsel for the

respondent No.1, are pertaining to the cases where the delay was

inordinate. In Estate Officer, Haryana Urban Development

5
(1987) 2 SCC 107
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Authority and another v. Gopi Chand Atreja (1 supra), there was a

delay of 1942 days and as the said delay was not properly explained, the

Hon’ble Apex Court held that there was no justification for condoning

the said inordinate delay of four years six months in filing the second

appeal, and the same could not constitute a sufficient cause within the

meaning of section 5 of the Limitation Act. In the other case of Jangan

Rajendra Kumar v. Basava Srinivas (2 supra), the erstwhile High

Court of A.P. observed that the explanation offered by the petitioner was

bereft of material particulars. There was a delay of 681 days in filing

the petition to set aside the ex parte decree by the defendant in the said

case.

12. In matters of condonation of delay, each case has to be

decided on its own merits, basing upon the facts and circumstances of

the said cases. As the petitioners are able to show that there are

justifiable grounds for them in filing the petition for setting aside the ex

parte decree with a delay, the trial court ought to have allowed the same.

13. With regard to the other contention raised by the learned

counsel for the respondent No.1 that the petitioners have filed this

revision petition only against the order in I.A. No.121 of 2015, but not
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preferred any appeal or revision against the order in I.A. No.1417 of

2016 in O.S. No.99 of 2011 which was also passed through the common

judgment, the trial court ought not to have numbered the petition filed

under Order IX Rule 13 of CPC at the first instance before allowing the

petition filed under Section 5 of the Limitation Act. However, the

judgment of the erstwhile High Court of A.P. in S. Viswanath Reddy v.

N. Venkateswara Reddy and others, wherein also an application to set

aside an ex parte decree was filed along with an application to condone

the delay and the application for condonation was allowed subject to the

condition of depositing certain amount within a particular date and a

revision was filed against the said order and pending revision, in view of

non-compliance of condition imposed, the application for condonation

of delay was dismissed and no revision was filed against the said order,

it was held that it was open to the High Court to take note of the said

subsequent order passed by the court below to set right the matters in

controversy to render proper justice.

14. The High Court held that in view of the language used in

Section 115 of CPC, in order to see that proper justice is done to the

parties, without there being a revision challenging the second order

passed by the trial court, when it is brought to the notice of the court at
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the time of hearing, the court is competent to take note of the fact and

competent to decide the first order on merits.

15. The facts of the present case stands on a better footing than

the above case. In the present case, both IAs were disposed of by a

common order. In the above case, separate orders were passed. But

even then the High Court considered that even without a revision being

preferred challenging the second order, the court is competent to take

note of the same and to decide it on the merits of the first order. As this

Court has power under Section 115 of the CPC to adjudicate the issue,

which was not directly challenged before the court, when the same was

brought to the notice of the court to render justice to the parties, it is

considered fit to set aside the order passed in I.A. No.1417 of 2016 also

along with the order in I.A. No.121 of 2015 in O.S. No.99 of 2011.

16. In the result, the Civil Revision Petition is allowed setting

aside the common order passed by the learned Senior Civil Judge,

Nalgonda in I.A. No.121 of 2015 and I.A. No.1417 of 2016 in O.S.

No.99 of 2011 dated 16.04.2018 and both the applications are allowed

and O.S. No.99 of 2011 is restored to file. The trial court is directed to
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receive the written statement filed by the petitioners herein and decide

the suit on merits afresh in accordance with law.

I.A. No.1 of 2025 is allowed granting leave to the petitioners to

file the death certificate and medical record of the petitioner No.2 issued

by Yashoda Hospital.

No order as to costs.

Miscellaneous petitions pending, if any, shall stand closed.

____________________
Dr. G.RADHA RANI, J
March 27th 2025
KTL