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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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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CRP No.718 of 2019
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
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