Smt. C.Shakuntala v. Smt.C.Durga Bai

HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD WEDNESDAY, THE TENTH DAY OF JUNE TWO THOUSAND AND TWENTY PRESENT THE HONOURABLE DR. JUSTICE SHAMEEM AKTHER t.A.NO.02 0F 2020 AND C.C.C.A. NO: 01 OF 2020 Common C.T. in lA No.02 of 2020 and CCGA No.01 ol 2020: Between:

1. Smt. C.Shakuntala, W/o. Late C.Mallaiah,

2. C.Gouri Shankar, S/o. Late C.tr/allaiah, ...PETITIONERS/ APPELLANTS/ DEFENDANTS 1 AND 2 AND

1. Smt.C.Durga Bai, W/o. Late C.Hanumanth Rao

2. C.Shailaja, W/o. P.Raj Kumar Reddy, 3 c Sarika' w/o V Rakesh .......RESpoNDENT./ RESpoNDENTS/ ,LATNTTFFS

4. C.Nageshwar Rao, S/o. Late C.l\4allaiah, (Respondent No.4 is formal party) ...RESPONDENT/ RESPONDENT/ DEFENDANT NO.3 Petition under Section 5 of Limitation Act, R/w.151 of CPC praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to condone the delay of 920 days in filing the CCCA for setting aside the preliminary decree passed by the Hon'ble XIX Senior Civil Judge, City Civil Court, Secunderabad dt.2711212016 in file No. O.S. No.505/1 1 dated 2711212016. cccA No.01 0F 2020:

Appeal under Section 96 of CPC against the Judgment and decree made in O.S. No.505 oT 2011 daled 2711212016 on the file of the Cou( of the XIX Additional Senior Civil Judge, at Secunderabad.

For the Appellants : SRI KAATRAPATI SAryANARAYANA, Advocate For the Respondents : NONE APPEARED The Court delivered the following: JUDGMENT

THE HC)r\r'BLE Dr. JUSTICE SHAMEEM AK'l'l-lER I.A.No.2 of 2O2O and C.C.C.A.No.1 of 2O2O COMMON JILEIJMENT:.

c.c.c.A trto.1 0f 2020 is filed b,r the appellants/de1i:ndant Nos.1 & 2, challenging the jurlgnrent and decree, datec 27.12.2016, passed in O.S.No.505 of 2011 by the XIX Additional Senior Civil Judge at Secunderab,ad. 2.

I.A.No.,l of 2020 is filed by the petitioners/apcellants to condone the (1,-. ay of 920 days in filing the appeal. 3.

Heard t'€ learned counsel for the petitioners/ appellants and perused llr,: record.

4.

The learned counsel for the petitioners/appellants would contend that :he judgment impugned in the app(ral is an ex parte judgn- t:nt. The petitioners/appellants ar€j senior citizens. --hough the petitioners/appellants w€)re in touch with their advocate on record in the proceeding:; before the Court below regularly, at no point of time th(rir advocate informed thern about the ex parte judgment passerl by the Court below, There are no laches on the rarl: of the petitioners/al)pellants. The delay is neither willful nor wanton. There are fair chances of success of the petitioners/appellants in this appe.rl and ultimately prayed to condone the delay of 920 days in f i ing the appeal.

5.

As seen from the material on record, the delay is huge, i.e., 920 days. The Court below, in the impugned judgment, held as follows:- ".,,the defendants did not turn up to appear before this Court even after several adjournments and conditional orders and hence, the defendants' side evidence was closed"

"...though the defendant No.1 filed written statement, but the defendants failed to rebut the plaintiff's case by producing any supporting evidence on their behalf ."

6.

Under those circumstances, the Court below was left with no other option but to set the petitioners/appellants ex parte. \t is settled law that for condoning the delay in filing an appeal, the petitioner/s have to explain the day to day delay. Section 5 of the Limitation act, 1963, mandates that any appeal or application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure Code, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

7, In the instant case, the petitioners/appellants, in the affidavit filed in support of I.A.No.2 of 2020, averred as fo llows :

"Petitioner No,1, being senior citizen and petitioner No.2 being employee could not able to pursue the matter with personal visits to court and petitioners were under the impression that the counsel will call on all necessary times whenever their presence is required in the Court as well as office of the counsel and meeting the counsel through cell phone regularly. But no

) point of time the counsel of the petitioners informecl about the ex parte decree passerJ by the Hon'ble Court on 27.O7,2Ot6."

"Petitio lclrs received the notice in I.A.No.76 of 2019 in 77 ot 2OL9 issued by the trial Cou.t t,) appear Errrd to file the counter in the said .t.As, Then the petitioners approached the couns€rl and the counsel stated that I also do not knolv about tlre ex parte order on seeing of the s:rmc, the courlsel also got shocked and surprised," 8.

As seen from the above averments of the pet tioners/ appellants/ it is clear that the petitioners/appellan:s l'ave not pursued their matter diligently. The petitioners;/appellants have thrown the entire blame on their advocate for setting them ex parto in the proceedings before the Court below. They ought n,)t have pleaded so. It reflects c:allousness, lethargy and deliberate laches in prosecuting the subject original suit. Vhen a matter is entrusted to an ad'rocate, it is the duty of the parties to pursue the matter dil 3ently with their advocate and take all remedial measures such as filing of written state rent and other documents on time. The ignorance pleaded by the petitioners/appellants is not a ground to conlone the huge delay of 920 days. Mcreover, the petitioners/ap:ellants are senior citizens.

In sucir an event/ they ought tc) have pursued the remedies expeditiously. Further, there are two petitioners. Either of them wor.rld have pursued the rratter with their advocate concerned, so also with the Court. There are grave laches on the :arl. of the petitioners/appellants in pursuing the matter befor,-. tl^e Court below.

days in filing the appeal. There are no merits in I.A.No.2 of 2020 and as such, I.A.No.2 of 2020 is liable to be dismissed. 9.

Accordingly, I.A.No.2 of 2020 is dismissed.

Consequently, C.C.C.A.No.1 of 2020 stands rejected. No costs, Miscellaneous petitions, if any, pending in this unregistered appeal shall stand dismissed.

Sd/-K.SREENIVASA RAO DEPUTY REGIS R //TRUE COPY// SECTION OFFICER To

1. The XIX Additional Senior Civil Judge, City Civil Court, at Secunderabad.

2. One cc to Sri K.Satyanarayana, Advocate (OPUC)

3. Two CD Copies Kj \.

HIGH COURT DATED:10/06/,1(120 COMMON JUDI3MENT oF l- :\,.' ".\ '"'.r.\ t P1 l.A.No.02 ol2tJt20 and CCCA.No.01 <rf 2020 ^"$ ..:i]t'

te (-,, ,/ o t1"

il ij \ qc lt ..- I I Dismissing tlrre IA and rejecting the {3CCA, without costs.

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