THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CIVIL REVISION PETITION No.1481 of 2019

ORDER:

This Civil Revision Petition is filed assailing the Order dated 05.03.2019 in I.A.No.308 of 2018 in O.S.No.148 of 2015, passed by the learned Principal Senior Civil Judge, at Karimnagar, wherein the application filed by the petitioner under Section 5 of the Limitation Act, was dismissed.

2. Heard Sri Syam S.Agarwal, learned Counsel for the petitioner, and there is no representation on behalf of the respondent, despite notice by way of substitute service and therefore, the matter is being disposed of basing on the material available on record.

3. The petitioner is plaintiff and the respondent is defendant in the suit.

4. Brief facts of the case which led to filing of the present revision petition are that petitioner has filed a suit against the respondent vide O.S.No.148 of 2015, before the trial Court, for specific performance of agreement of sale dated 09.08.2012, in respect of the suit schedule property; respondent has entered appearance, and filed written statement, issues were framed and the matter was coming up for trial; the petitioner filed his chief affidavit on 15.03.2017, and documents were marked on 19.07.2017, and when the matter was posted for his cross- examination, the petitioner suffered with serious health issues due to high B.P and Sugar, Hypertension, Diarrhoea, kidney and liver infection, and therefore he could not appear before the trial Court on 07.02.2018, though the matter was posted conditionally, therefore, trial Court dismissed the suit with the observation that petitioner is not diligent in pursuing the matter.

5. The petitioner has filed an application to set aside the dismissal Order, along with an application i.e., I.A.No.308 of 2018, for condoning the delay of 54 days in filing the restoration petition. However, the said application was dismissed by the trial Court vide impugned Order dated 05.03.2019, on the ground that petitioner did not assign proper reasons for the delay, except saying that he was suffering from high B.P, Diabetes, diarrhoea, Kidney and Liver infection and no medical prescriptions were filed.

6. Learned Counsel for the petitioner would submit that the petitioner was in fact suffering with High B.P, Hypertension, Diabetes, Diarrhoea and Kidney and Liver infection and to prove his contention he placed on record medical prescriptions of the petitioner from 2014 to 2018, however, these documents were not filed before the trial Court. He further submitted that the suit was filed for specific performance of agreement of sale and in fact more than 50% of the sale consideration was paid, therefore, substantial rights in an immovable property are involved and therefore, the trial Court ought to have taken lenient view instead of dismissing the application and thus prayed to allow the revision petition.

7. It is relevant to note that, regarding the aspect of condonation of delay, the Hon'ble Supreme Court in N.Balakrishnan Vs. M.Krishnamurthy,, (1998) 7 SCC 123, held as follows:-

“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 delay of shortest range may be uncondonable due to want of acceptable explanation, whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior court would be