HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CIVIL REVISION PETITION No.3239 OF 2024

ORDER

This Civil Revision Petition is filed assailing the order, dated 18.07.2024, passed by the Junior Civil Judge at Suryapet in I.A.No.171 of 2022 in OS.No.89 of 2014.

2. Heard Sri P.Lakshma Reddy, learned counsel for the revision petitioners, and Sri S.Prasad Babu, learned counsel for respondent.

3. The revision petitioners are plaintiffs and respondent is defendant in the suit. For convenience, the parties will be hereinafter referred to as arrayed in the suit.

4. The brief factual matrix of the case required for adjudication of the present case, is that the plaintiffs filed suit in OS.No.89 of 2014 for perpetual injunction against the defendant in respect of the suit schedule property and the said suit was dismissed for default on 15.02.2019. Subsequently, an application in IA.No.171 of 2022 was filed under Section 5 of the Limitation Act praying the Court to condone the delay of three (3) years and 28 days in filing the application to set aside the dismissal order. The said application came to be dismissed by the trial Court. Aggrieved by the same, the present Revision Petition is filed.

5. In the affidavit, filed in support of their application, the revision petitioners/plaintiffs averred that they were represented by one Sri S.Jayachander Rao, advocate, before the trial Court; that the said counsel was suffering from cancer and ultimately, due to serious illness on being attacked by Corona virus, he died in the Month of May, 2021; that plaintiff Nos.2 to 5, who are the married daughters of plaintiff No.1, came to know about the said fact on 20.02.2022 and further, on 25.02.2022, they came to know about the dismissal of the suit for default; that immediately, they filed an application seeking to condone the delay that occurred in filing the application to set aside the dismissal order; and therefore, the delay that occurred is neither intentional nor wanton and accordingly, prayed to condone the same.

6. Learned counsel for the revision petitioners/plaintiffs submitted that the revision petitioners/plaintiffs are in possession of the suit schedule property and the suit was filed for perpetual injunction when the defendant continuously interfered with their possession over the suit schedule property and thus, valuable rights of the parties are involved in the suit. He further submitted that the trial Court failed to appreciate that the delay is neither willful nor wanton on the part of the plaintiffs; that the trial Court failed to consider the explanation given by the plaintiffs for the delay and further, by adopting a rigid approach, the trial Court has erred in dismissing the application on narrow technical grounds and hence, prayed to allow this Revision Petition.

7. In support of his contention that the Courts should adopt a liberal approach when considering applications for condonation of delay, particularly when no mala fide or gross negligence is evident, learned counsel for revision petitioners relied upon the judgment of the Hon'ble Supreme Court in N.Balakrishnan Vs.

M.Krishnamurthy, (1998) 7 SCC 123

8. Per contra, learned counsel for the respondent/defendant submitted that the plaintiffs failed to explain the day-to-day delay; that the plaintiffs are intentionally prolonging the matter for one or other reasons; and that the trial Court taking into account the same, has rightly dismissed the application as the same is devoid of any merits and therefore, the impugned order of the trial Court warrants no interference by this Court.

9. In N.Balakrishnan’s (cited supra), the Hon'ble Supreme Court at paras 9 and 10 held as hereunder:

“9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes d