MAJJI SANNEMMA @ SANYASIRAO versus REDDY SRIDEVI & ORS. on 16 December 2021

1. Feeling aggrieved and dissatisfied with the impugned order dated16.09.2021 passed by the High Court of Andhra Pradesh at Amaravatiin I.A. No.1 of 2021 in Second Appeal No.331 of 2021 by which theHigh Court has condoned a huge delay of 1011 days in preferring theSecond Appeal, the appellant - original plaintiff – respondent before theHigh Court, has preferred the present appeal.

G

2. That the appellant herein – original plaintiff filed a civil suitbeing O.S. No. 40 of 2013 for permanent injunction against therespondents herein – original defendants. That the Trial Court dismissedthe said suit by judgment and decree dated 23.04.2016. That the First H

AAppellate Court allowed the suit by quashing and setting aside thejudgment and decree passed by the Trial Court, by judgment and decreedated 01.02.2017. That the original defendants – respondents hereinapplied for the certified copy of the judgment and order on 04.02.2017.The same was ready for delivery on 10.03.2017. That after a period ofapproximately 1011 days, the respondents herein – original defendantsBpreferred the Second Appeal before the High Court. Application tocondone the delay was also filed being I.A. No.1 of 2021. By theimpugned order, the High Court has condoned the delay of 1011 days inpreferring the Second Appeal, which is the subject matter of appealbefore this Court.C

3. Learned counsel appearing on behalf of the appellant herein –original plaintiff has vehemently submitted that in the present case, HighCourt has committed a grave error in condoning huge delay of 1011days in preferring the appeal.

3.1 It is submitted that as such no sufficient cause was shown byDthe respondents herein - appellants before the High Court, explainingthe huge delay of 1011 days in preferring the Second Appeal.

3.2 It is further submitted that even while condoning the hugedelay of 1011 days, the High Court has also not observed that sufficientcause has been shown explaining the delay of 1011 days in preferringEthe Second Appeal.

3.3 It is further submitted that even considering the averments inthe application for condonation of delay, there is no explanationwhatsoever explaining the delay for the period after 15.03.2017 till June,2021 - till the Second Appeal was preferred.F

3.4 Making the above submissions and relying upon the decisionsof this Court in the cases of Ramlal, Motilal and Chhotelal Vs. RewaCoalfields Ltd., (1962) 2 SCR 762; P.K. Ramachandran Vs. Stateof Kerala and Anr., (1997) 7 SCC 556 as well as the decision in thecases of Pundlik Jalam Patil Vs. Executive Engineer, JalgaonGMedium Project, (2008) 17 SCC 448 and Basawaraj and Anr. Vs.Special Land Acquisition Officer., (2013) 14 SCC 81, it is prayed toallow the present appeal.

4. Shri Siddhartha Srivastava, learned counsel appearing on behalfof respondent Nos.1 and No.2 – appellants before the High Court, has H

supported the impugned order passed by the High Court allowing theapplication for condonation of delay and condoning the delay in preferringthe appeal.

4.1 It is submitted that when the High Court has exercised discretionand has condoned the delay, the same may not be interfered with by thisCourt in exercise of powers under Article 136 of the Constitution ofIndia.

4.2 It is further submitted by learned counsel appearing on behalfof respondent Nos.1 and 2 that as rightly observed by the High Court ifthe delay is condoned in that case the appeal will be considered anddecided on merits and therefore, no prejudice would be caused to theappellant. It is submitted that in order to enable the respondents –appellantsbefore the High Court, to submit the case on merits instead of non-suiting them on the technical ground of delay, it is prayed to dismiss thepresent appeal.

5. We have heard the learned counsel appearing on behalf of therespective parties at length.

6. At the outset, it is noted that by the impugned order the HighCourt has condoned a huge delay of 1011 days in preferring the SecondAppeal by respondent Nos.1 and 2 herein – original defendants –appellants before the High Court. While condoning the delay, the HighCourt has observed as under:-

“In these circumstances, when there are certain questions, whichrequire a debate in the second appeal, it is not necessary that thismatter be rejected at this stage, without inviting a decision onmerits. lf the delay is condoned though enormous, what happensat best is to give an opportunity to the parties to canvass theirrespective case. Since this question being of procedure, the attemptof the court should be to encourage a healthy discussion on meritsthan rejecting at threshold.

Viewed from such perspective, accepting the reasons assignedby the petitioner, the delay in presenting this second appeal shouldbe condoned.

Apparently, there is no wilful negligence on the part of thepetitioners nor this attempt suffers from want of due diligence. Itappears being a bonafide attempt on the part of the petitioners to AB

C

DE

F

G

H

Acanvass their claim particularly when the trial court had acceptedtheir plea, which was subjected to reversal by the appellate court.However, the petitioners should compensate the respondent bymeans of costs for this delay. The contention of the respondentthat valuable rights are accrued to her on account of inaction ofthe petitioners in failing to prefer the Second Appeal within time,Bcannot be a significant factor in the backdrop of the circumstancesfound in this case.

In the result, this petition is allowed condoning the delay of 1011days in filing the second appeal subject to payment of costs ofRs.2,000/- (Rupees Two thousand only) to the learned counselCfor the respondent on or before 05.10.2021.”

Thus from the aforesaid, it can be seen that the High Court hasnot observed that any sufficient cause explaining the huge delay of 1011days has been made out.

D6.1 The High Court has observed that if the delay is condoned noprejudice will be caused to the appellant as the appeal would be heardon merits. The High Court has also observed that there is no wilfulnegligence on the part of the respondents herein nor it suffers fromwant of due diligence. However, from the averments in the applicationfor condonation of delay, we are of the opinion that it was a case of aEgross negligence and/or want of due diligence on the part of therespondents herein – appellants before the High Court in filing such abelated appeal.

6.2 We have gone through the averments in the application forthe condonation of delay. There is no sufficient explanation for the periodFfrom 15.03.2017 till the Second Appeal was preferred in the year 2021.In the application seeking condonation of delay it was stated that she isaged 45 years and was looking after the entire litigation and that shewas suffering from health issues and she had fallen sick from 01.01.2017to 15.03.2017 and she was advised to take bed rest for the said period.GHowever, there is no explanation for the period after 15.03.2017. Thus,the period of delay from 15.03.2017 till the Second Appeal was filed inthe year 2021 has not at all been explained. Therefore, the High Courthas not exercised the discretion judiciously.

7. At this stage, a few decisions of this Court on delay in filing theappeal are referred to and considered as under:-H

7.1 In the case of Ramlal, Motilal and Chhotelal (supra), it isobserved and held as under:-

In construing s. 5 it is relevant to bear in mind two importantconsiderations. The first consideration is that the expiration of theperiod of limitation prescribed for making an appeal gives rise to aright in favour of the decree-holder to treat the decree as bindingbetween the parties. In other words, when the period of limitationprescribed has expired the decree-holder has obtained a benefitunder the law of limitation to treat the decree as beyond challenge,and this legal right which has accrued to the decree-holder bylapse of time should not be light-heartedly disturbed. The otherconsideration which cannot be ignored is that if sufficient causefor excusing delay is shown discretion is given to the Court tocondone delay and admit the appeal. This discretion has beendeliberately conferred on the Court in order that judicial powerand discretion in that behalf should be exercised to advancesubstantial justice. As has been observed by the Madras HighCourt in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, “s.5 gives the Court a discretion which in respect of jurisdiction is tobe exercised in the way in which judicial power and discretionought to be exercised upon principles which are well understood;the words ‘sufficient cause’ receiving a liberal construction so asto advance substantial justice when no negligence nor inactionnor want of bona fide is imputable to the appellant.”

7.2 In the case of P.K. Ramachandran (supra), while refusing to condone the delay of 565 days, it is observed that in the absence ofreasonable, satisfactory or even appropriate explanation for seekingcondonation of delay, the same is not to be condoned lightly. It is furtherobserved that the law of limitation may harshly affect a particular partybut it has to be applied with all its rigour when the statute so prescribesand the courts have no power to extend the period of limitation on equitablegrounds. It is further observed that while exercising discretion forcondoning the delay, the court has to exercise discretion judiciously.

7.3 In the case of Pundlik Jalam Patil (supra), it is observed asunder:- “The laws of limitation are founded on public policy. Statutes oflimitation are sometimes described as “statutes of peace”. Anunlimited and perpetual threat of limitation creates insecurity and AB

C

D

E

F

G

H

Auncertainty; some kind of limitation is essential for public order.The principle is based on the maxim “interest reipublicae ut sitfinis litium”, that is, the interest of the State requires that thereshould be end to litigation but at the same time laws of limitationare a means to ensure private justice suppressing fraud and perjury,quickening diligence and preventing oppression. The object forBfixing time-limit for litigation is based on public policy fixing alifespan for legal remedy for the purpose of general welfare. Theyare meant to see that the parties do not resort to dilatory tacticsbut avail their legal remedies promptly. Salmond in his Jurisprudencestates that the laws come to the assistance of the vigilant and notCof the sleepy.”

A

A

7.4 In the case of Basawaraj (supra), it is observed and held bythis Court that the discretion to condone the delay has to be exercisedjudiciously based on facts and circumstances of each case. It is furtherobserved that the expression “sufficient cause” cannot be liberallyDinterpreted if negligence, inaction or lack of bona fides is attributed tothe party. It is further observed that even though limitation may harshlyaffect rights of a party but it has to be applied with all its rigour whenprescribed by statute. It is further observed that in case a party hasacted with negligence, lack of bona fides or there is inaction then therecannot be any justified ground for condoning the delay even by imposingEconditions. It is observed that each application for condonation of delayhas to be decided within the framework laid down by this Court. It isfurther observed that if courts start condoning delay where no sufficientcause is made out by imposing conditions then that would amount toviolation of statutory principles and showing utter disregard to legislature.F

7.5 In the case of Pundlik Jalam Patil (supra), it is observed bythis Court that the court cannot enquire into belated and stale claims onthe ground of equity. Delay defeats equity. The Courts help those whoare vigilant and “do not slumber over their rights”.

8. Applying the law laid down by this Court in the aforesaidGdecisions to the facts of the case on hand and considering the avermentsin the application for condonation of delay, we are of the opinion that assuch no explanation much less a sufficient or a satisfactory explanationhad been offered by respondent Nos.1 and 2 herein – appellants beforethe High Court for condonation of huge delay of 1011 days in preferringHthe Second Appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High Court has not exercisedthe discretion judiciously. The reasoning given by the High Court whilecondoning huge delay of 1011 days is not germane. Therefore, the HighCourt has erred in condoning the huge delay of 1011 days in preferringthe appeal by respondent Nos.1 and 2 herein – original defendants.Impugned order passed by the High Court is unsustainable both, on lawas well as on facts.

9. In view of the above and for the reasons stated above, thepresent Appeal is Allowed. The impugned order dated 16.09.2021 passedby the High Court condoning the delay of 1011 days in preferring theSecond Appeal by respondent Nos.1 and 2 herein is hereby quashed andset aside. Consequently, Second Appeal No.331 of 2021 preferred byrespondent Nos.1 and 2 herein stands dismissed on the ground of delay.The present Appeal is accordingly Allowed. However, there shall be noorder as to costs.

Devika Gujral

Appeal allowed

A

B

C

D

E

F

G

H