The sufficiency of cause is essential for condoning delay under Section 5 of the Limitation Act; mere negligence of counsel is insufficient without evidence of diligence from the litigant.

JUDGMENT :

(Ravi Nath Tilhari, J.)

Heard Sri Balaji Medamalli, learned counsel for the appellant/petitioner and Sri T.V.P. Sai Vihari, learned counsel for the respondents 1 and 2.

2. The plaintiffs respondents 1 and 2 filed O.S.No.14 of 2016 for the relief of possession of plaint schedule property against the defendants in the suit and for some other reliefs. In the said suit, third party namely B.S.P.M. Durga Prasad filed I.A.No.177 of 2016 for the impleadment under Order I rule 10 C.P.C to implead as 7^th defendant and his two brothers as defendants 8 and 9 in the O.S. I.A was dismissed on 20.08.2018, in default.

3. The third party would also be referred as appellant in both the cases.

4. The third party filed I.A.No.1344 of 2022 under Section 5 of the Limitation Act to condone the delay of 1493 days in filing the petition for setting aside the dismissal order and for restoration of I.A.No.177 of 2016.

5. The plaintiff-respondents filed counter. They submitted that there were no grounds to condone the delay and to set aside the dismissal order dated 20.08.2018. The application was liable to be dismissed.

6. The learned VIII Additional District Judge, Vijayawada framed the point for consideration, whether application under Section 5 of the Limitation Act could be allowed or not.

7. On consideration, it was held that there was inordinate delay of 1493 days and there was no sufficient cause shown to condone such delay. The ground taken that, the counsel of the third party did not inform about the stage of the petition and so he could not represent the matter, was found unsatisfactory. The abnormal delay of 1493 days, was thus not condoned and the I.A was dismissed by order dated 31.08.2023.

8. The application under Order IX Rule 7 CPC was also rejected by the order of the same date.

9. Challenging the order of rejection of the application under Section 5 of the Limitation Act in I.A.No.1344 of 2022, C.R.P.No.3154 of 2023 has been filed and challenging the order dated 31.08.2023 in I.A.No.1343 of 2022, C.M.A No.552 of 2023 under Order 43 Rule 1 C.P.C has been filed.

10. Learned counsel for the appellant submitted that the learned court acted illegally in rejecting both the applications. He submitted that the cause shown was sufficient. The appellant was not informed about the position of the case, by his counsel. He submitted that the mistake of the counsel is a sufficient ground for condonation of delay.

11. Learned counsel for the appellant placed reliance in the case of Shaik Akbar vs. Shaik G. Basha and others, [2024 SCC OnLine AP 2933], to contend that in the matters of condonation of delay liberal approach should be taken and the costs might have been imposed.

12. Learned counsel for the plaintiff-respondent submitted that there was inordinate delay of 1483 days. There was no sufficient cause shown. There is no illegality in the order of rejection of the application under Section 5 of the Limitation Act and consequently the rejection of the application for setting aside the order dated 20.08.2018 is also justified.

13. We have considered the aforesaid submissions and perused the material on record.

14. There was inordinate delay in filing the application for setting aside the order dated 20.08.2018. The cause was shown that the counsel did not inform about the proceedings. The cause stated is „the mistake of the counsel‟. The said cause has not been accepted by the learned court as a sufficient cause to condone the inordinate delay. Nothing has been brought on record to show the mistake or negligence of the counsel. Any particulars in that regard have also not been disclosed. The appellant has also not stated his efforts made, if any, to show his diligence and being vigilant in prosecuting the case.

15. In Shaik Akbar (supra), upon which, the learned counsel for the appellant placed reliance the suit pertaining to immovable properties, was dismissed for default on 17.06.2016. The petitioner therein filed application for restoration on 05.0