(Prayer: Appeal under section ------ against orderspleased to pass Judgment and Decree in favour of the appellant by set-aside the Judgment and decree passed in A.S. No. 74 of 2017, dated 10.03.2023 on the file of XVI Additional District Judge at Nandigama as well as Judgment and Decree passed in O.S.No. 41 of 2015 Dt.28.03.2017, on the file of Senior Civil Judge at Nandigama and pass

IA NO: 1 OF 2024

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased Pleased to condone the delay of ( 192 ) days in filing the above Second Appeal in A.S. No. 74 of 2017, dated 10.03.2023, on the file of XVI Additional District Judge at Nandigama and pass

IA NO: 2 OF 2024

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to pass orders directing the respondents not to alienate the suit schedule property and pass)

1. The petitioner/appellant is filed the present Interlocutory Application with a prayer to condone the delay of 192 days in filing the Second Appeal against the Decree and Judgment passed in A.S.No.74 of 2017, dated 10.03.2023 on the file of the XVI Additional District Judge, Nandigama, confirming the Decree and Judgment passed in O.S.No.41 of 2015, dated 28.03.2017, on the file of the Senior Civil Judge, Nandigama.

2. The case of the petitioner as per the affidavit in brief is as follows:-

                  I. The petitioner herein filed a suit for Partition of Plaint Schedule Property vide O.S.No.41 of 2015 and the said suit was dismissed vide Decree and Judgment dated 28.03.2017, against which he preferred an appeal vide A.S.No.74 of 2017 and the said appeal was dismissed on 10.03.2023. Subsequent to the Decree and Judgment passed in A.S.No.74 of 2017 on the file of the XVI Additional District Judge, Nandigama, dated 10.03.2023, he applied for a certified copy of the Judgment on 24.03.2023. The certified copy was made ready on 04.07.2023. The petitioner was required to prefer the Second Appeal on or before 19.09.2023.

                  II. The petitioner further contend that the certified copies of the Decree and Judgment of the learned First Appellate Court were misplaced, and due to his illness, he could not contact his counsel within the stipulated period. Consequently, a delay of 192 days has occurred in filing the Second Appeal. The said delay is neither willful nor intentional but has occurred due to the reasons stated above. Hence, this Interlocutory Application is being filed.

3. The case of the respondent No.1 as per the counter filed by the respondent No.1 in brief is as follows:-

                  I. The respondent No.1 submitted that he has read the affidavit filed in support of I.A.No.1 of 2024, seeking condonation of delay, and the same does not disclose any valid or substantial grounds for granting the reliefs prayed for. The petitioner/appellant is put to strict proof of the allegations, which are denied except to the extent specifically admitted herein. The petitioner has not approached this Court with clean hands.

                  II. It is further submitted that the petitioner/appellant has no valid right over the schedule property. Both the Courts below have concurrently and rightly held that the petitioner/appellant did not approach the Courts with clean hands and had suppressed material facts relating to the business transactions between the petitioner and the respondents. The petitioner/appellant continued the same conduct even at the stage of Second Appeal by suppressing material facts.

                  III. It is further submitted that the petitioner/appellant has approached this Court with a delay of 192 days. A mere allegation that he was unwell, without filing any document to substantiate such illness, cannot be accepted. A bare reading of the affidavit filed in support of I.A. No.1 of 2024, seeking condonation of delay clearly shows that no sufficient cause is made out explaining what prevented him from filing the appeal within the prescribed time.

                  Hence, the Interlocutory Application is liable to be dismissed.

4. Heard learned counsel appearing on both sides on record.

                  “Now the point for determination is whether the petitioner has shown any sufficient cause to condone the delay of 192 days in filing the Second Appeal?”

POINT:

5. The undisputed facts are that the petitioner is the plaintiff in O.S.No.41 of 2015 on the file of the Senior Civil Judge, Nandigama. He filed the suit for partition of the plaint schedule property in the year 2015, and the same was dismissed on contest by both parties on 28.03.2017. Aggrieved by the said Decree and Judgment passed by the learned Trial Court, the plaintiff herein filed the first appeal in A.S.No.74 of 2017 on the file of the XVI Additional District Judge, Nandigama. The First Appellate Court, after hearing both sides, dismissed the appeal on merits on 10.03.2023. The petitioner/appellant has now filed the present Second Appeal along with I.A.No.01 of 2024, with a delay of 192 days.

6. The petitioner contended that the First Appellate Judge, passed the Decree and Judgment on 10.03.2023, and he filed a copy application on 24.03.2023, seeking certified copy of the Decree and Judgment, the same was made ready on 04.07.2023, and he had to prefer the second appeal on or before 19.09.2023. He further pleaded that due to misplacement of the certified copies of the Decree and Judgment of the First Appellate Court, and also due to his illness, he could not contact his advocate within the stipulated time, resulting in occurrence of 192 days delay. He further pleaded that the delay was neither willful nor intentional, but occurred due to the aforesaid reasons.

7. As seen from the material available on record, the petitioner/appellant herein filed a copy application for obtaining certified copies of Decree and Judgment before the First Appellate Court on 24.03.2023 and the copy application was made ready on 04.07.2023, and the certified copies of the said Decree and Judgment was delivered on 04.07.2023, by the Office of the learned XVI Additional District and Sessions Court, Nandigama.

8. The explanation offered by the petitioner in his affidavit, for not filing the Second Appeal within stipulated time is that due to the misplacement of certified copies of Decree and Judgment of the First Appellate Court and also due to his illness he could not contact his advocate within stipulated time. Admittedly, there is no whisper in the affidavit of the petitioner that when the certified copies of the Decree and Judgment obtained from the Office of the XVI Additional District and Sessions Court, Nandigama, on 04.07.2023, were lost and also when those certified copies of the Decree and Judgment are traced.

9. The material on record prima facie reveals that after obtaining certified copies of the Decree and Judgment from the First Appellate Court on 04.07.2023, the petitioner/appellant herein approached the Advocate on 18.07.2023 and got filed a copy application for written statement of Defendants Nos.1 & 2 and also adopting Memo of other defendants. The said copy application was filed on 18.07.2023 and the said copy application of written statement of Defendant Nos.1 & 2 and adopting Memo of other defendants were made ready by the Office of the Additional District Court on 10.08.2023 and the same were delivered on 10.08.2023, to the petitioner. Therefore, prima facie it is evident that after obtaining certified copies of Decree and Judgment by the First Appellate Court, the petitioner herein contacted his Advocate and got filed the copy application on 18.07.2023 for obtaining certified copies of written statement of Defendant Nos.1 & 2 and adopting Memo of other defendants. Therefore, the averments in the affidavit of the petitioner that after obtaining the certified copy of Decree and Judgment, due to ill health he did not contact his Advocate after obtaining certified copies of Decree and Judgment, is nothing but false.

10. As stated supra, there is no whisper in the petitioner’s affidavit as to when the certified copies of the Decree and Judgment were lost and when they were traced.

11. It was contended by the petitioner that he suffered from ill health and that he could not met his counsel. Admittedly, no scrap of paper or medical certificate has been filed by the petitioner to prove his alleged illness. It is also not the case of the petitioner that he was hospitalized due to his illness. Furthermore, the petitioner is not new to the Court litigation; he is having experience in Court proceedings i.e., he approached the Civil Court and filed the suit, which was dismissed. Thereafter, he approached the First Appellate Court, and his first appeal was also dismissed on contest by both parties. Therefore, I am of the considered view that the petitioner is found to be negligent and also not acted diligently.

12. Learned counsel for the petitioner placed reliance on the case of Mool Chandra v. Union of India and another((2025) 1 SCC 625). The ratio laid down in the said case law pertains to a service matter, viz., the dismissal of an application seeking condonation of a delay of 425 days in challenging the order dated 22.11.2000, imposing stoppage of one increment with cumulative effect. Therefore, the facts and circumstances in the aforesaid case law are different to the present case.

13. It is well settled that the discretion to condone delay has to be exercised judiciously, based on the facts and circumstances of each case. It is also equally well settled that even though limitation may harshly affect the rights of the parties but it has to be applied with all its rigour as prescribed under the statute, as the Courts have no choice but to apply the law as it stands and they have no power to condone the delay on equitable grounds.

14. Learned counsel for the respondents also placed reliance on the Judgment in Pathapati Subba Reddy (died) by L.Rs. and others Vs. Special Deputy Collector (L.A.)( 2024 SCC Online SC 513), wherein the Hon’ble Apex Court held as under:-

                  “26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:

                  (i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;

                  (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;

                  (iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;

                  (iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;

                  (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;

                  (vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;

                  (vii) Merits of the case are not required to be considered in condoning the delay; and

                  (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.”

15. In a case of Basawaraj Vs. Special Land Acquisition Officer, the Hon’ble Apex Court held as under:-

                  “12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute”

                  …

                  25. In the aforesaid case law, the Hon’ble Apex Court further held as follows:-

                  "15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."

16. Considering the ratio laid down in the aforesaid case laws and I am of the considered view that the expression “sufficient cause” as occurring in Section 5 of the Limitation Act, cannot be liberally interpreted, if negligence, inaction, or lack of bona fides are in favour of petitioner. In the present case, there are several laches on the part of the petitioner, and there is clear negligence and inaction in pursuing the matter. In such circumstances, the delay cannot be condoned liberally.

17. For the aforesaid reasons, there are no merits in the present Interlocutory Application. Resultantly, the Interlocutory Application (I.A. No. 01 of 2024) is dismissed. Since the petition to condone the delay of 192 days in filing the Second Appeal vide I.A.No.01 of 2024 is dismissed, the Second Appeal is liable to be rejected. As a sequel, miscellaneous petitions, if any pending and the Interim Order granted earlier, if any, shall stand closed.