MANU/AP/1916/2024

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

Civil Revision Petition No. 2304/2024
Decided On: 04.12.2024
S. Gunasekaran Vs. Jayalakshmi Trading Company
Hon'ble Judges/Coram:
Ravi Nath Tilhari and Challa Gunaranjan, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: V. Ch. Naidu, Advocate
For Respondents/Defendant: Hari Babu Maguluri, Advocate
ORDER
Challa Gunaranjan, J.
1 . This Civil Revision Petition is directed against the orders dated 10.09.2024 in I.A.
No.73 of 2024 in I.A. No.479 of 2018 in C.O.S.No.17 of 2018, on the file of Special
Court for Trial and Disposal of Commercial Disputes, Vijayawada, by which the trial
court has rejected the application filed under Section 5 of Limitation Act to condone the
delay of 278 days in filing the application to restore the petition in I.A. No.479 of 2018.
2. Heard Sri V.Ch.Naidu, learned counsel for the revision petitioner and none appeared
for the respondent.
3. The brief facts of the case, in a nutshell, are as follows:
(a) This revision petition is preferred by the defendant in suit C.O.S.No.17 of
2018, questioning the order dated 10.09.2024, passed in I.A. No.73 of 2024 in
I.A. No.479 of 2018 in C.O.S. No.17 of 2018. This application was filed under
Section 5 of the Limitation Act to condone the delay of 278 days in filing the
restoration application in I.A. No.479 of 2018.
(b) The respondent/plaintiff filed O.S. No.386 of 2017 for recovery of an
amount of ' 8,26,34,057/- and also for subsequent interest thereon before II
Additional District Judge, Guntur. After receiving the summons, the
defendant/revision petitioner filed I.A. No.479 of 2018 for rejection of the
plaint under Order VII Rule 11 of CPC. The suit was thereafter transferred to
Special Court for Trial and Disposal of Commercial Disputes, Vijayawada, and
re-numbered as C.O.S.No.17 of 2018.
(c) I.A. No.479 of 2018 has been dismissed for non- prosecution on
13.12.2022. Thereafter, the defendant/revision petitioner filed I.A. No.73 of
2024 to condone the delay of 278 days in filing the application to restore I.A.
No.479 of 2018, which was dismissed for default by order dated 13.12.2022.
The said application has been dismissed by the impugned order dated
10.09.2024, against which the present revision petition is preferred.
4 . The counsel for the revision petitioner primarily challenges the order of the trial
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court on the ground that factum of dismissal of I.A. No.479 of 2018 by order dated
13.12.2022 for non- prosecution was not informed to the defendant/ revision petitioner
by his earlier counsel, as such, due to timely communication of such dismissal order,
there occurred a delay of 278 days in filing the application for restoration of the
dismissal order. Besides the above, it is also contended that though sufficient cause has
been demonstrated for condoning the delay, the court below has not acceded to the
same and dismissed the application. It is further contended that while considering the
application under Section 5 of the Limitation Act, the court should adopt liberal
approach and endeavour to consider the main cause in the case and address the merits
of the matter. In support of the said contention, the petitioner placed reliance on the
decision of the Division Bench of this Court in Trust Association of CBCNC v. M/s.
H.R.R. Constructions Private Limited and others MANU/AP/1040/2024 : 2024 (4) ALT
386 (D.B.) and attention is drawn to Para 8, which reads as under:
"8.(i) In Dhiraj Singh (Dead) Through Legal Representatives v. State of
Haryana MANU/SC/0778/2014 : (2014) 14 SCC 127 the Apex Court while
considering the SLPs filed by the appellants against the order of the High Court
refusing to condone the delay in filing the Letters Patent Appeals seeking
enhanced compensation in land acquisition matters. In that context the Apex
Court considered it earlier judgment in Collector (LA) v. Katiji
MANU/SC/0460/1987 : 1987:INSC:54 : (1987) 2 SCC 107 wherein it was
observed thus:
"(1) Ordinarily a litigant does not stand to benefit by lodging an appeal
late.
(2) Refusing to condone delay can result in a meritorious matter being
thrown out at the very threshold and cause of justice being defeated.
As against this when delay is condoned the highest that can happen is
that a cause would be decided on merits after hearing the parties.
(3) 'Every day's delay must be explained' does not mean that a
pedantic approach should be made. Why not every hour's delay, every
second's delay? The doctrine must be applied in a rational common
sense pragmatic manner.
(4) When substantial justice and technical considerations are pitted
against each other, cause of substantial justice deserves to be preferred
for the other side cannot claim to have vested right in injustice being
done because of a non-deliberate delay.
(5) There is no presumption that delay is occasioned deliberately, or on
account of culpable negligence, or on account of mala fides. A litigant
does not stand to benefit by resorting to delay. In fact he runs a
serious risk.
(6) It must be grasped that judiciary is respected not on account of its
power to legalise injustice on technical grounds but because it is
capable of removing injustice and is expected to do so."
Considering the above judgment SLPs were allowed and the delay was
condoned."
5. The petitioner's counsel also relied upon the judgment of the Hon'ble Apex Court in
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R.K.Roja v. U.S.Rayudu and another MANU/SC/0751/2016 : 2016:INSC:491 : (2016) 14
SCC 275 to buttress his argument that once application under Order VII Rule 11 of CPC
is filed, the court has to dispose of the same before proceeding with the trial of the
matter. Besides, it is also contended that since defendant/revision petitioner's counsel
had concluded his arguments as back as on 12.03.2019, the trial court should not have
dismissed the application for non- prosecution but rather dealt with the same on merits.
6. Perused the record.
7 . Coming to the first submission that as the petitioner was not informed of the
dismissal order in I.A. No.479 of 2018 by the previous counsel, and because of which
petitioner was unaware of the same, the same would not constitute reasonable cause
inasmuch as in the affidavit filed in support of I.A. No.73 of 2024,the petitioner has not
stated as to when he acquired knowledge of dismissal of the application and rather, he
is silent on the same and that even assuming he was not informed, he owes a duty and
responsibility to track the developments in the suit and there is no explanation of
whatsoever as to how he has been vigilant of the same. The reasons given in the
affidavit are that due to the petitioner's business engagement, he could not instruct his
advocate to conduct the case and thereby, I.A. No.479 of 2018 was dismissed for non-
prosecution on 13.12.2022 and that due to non-communication of the same by the
previous counsel, he could not immediately file the application to restore the same. The
relevant paras from the affidavit explaining the above reason read as under:
"4. The lower court failed to appreciate that the delay is not so abnormal and
can be condoned for affording opportunity to the petitioner herein to contest
and defend his case.
5. The trial court ought to have considered the docket proceedings of the main
case wherein the case has been adjourned several times during pandemic
period and the case has also been dismissed for default though ought to have
not been done since the arguments of this petitioner were already completed.
Therefore, the cause is sufficiently explained in the condone delay petition."
8. Reading of the above paras would disclose that there are absolutely no valid reasons
forthcoming explaining the inordinate delay of 278 days, hence, the trial court has
rightly come to the conclusion that the defendant/revision petitioner miserably failed to
show or explain the cause of delay and the explanation offered that because of his
business engagements and non- communication by his previous counsel, there was a
delay does not amount to proper explanation. This Court also finds that the explanation
offered above does not explain or sufficiently provided reasons for delay and that too
when the matter being conducted by Commercial Courts, the object behind is to
expedite and decide the matters in time-bound manner and having regard to the claim
made in the suit being for recovery of ' 8,26,34,057/-, the defendant/revision petitioner
should have given utmost priority and be vigilant enough in pursuing the matter. In the
judgment relied on by the petitioner's counsel in the Trust Association of CBCNC's case
(supra 1) also, the Hon'ble Apex Court laid down principles after reviewing various
judgments on this aspect, which reads as under:
(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic
approach while dealing with an application for condonation of delay, for the
courts are not supposed to legalise injustice but are obliged to remove
injustice.

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 (ii) The terms "sufficient cause" should be understood in their proper spirit,
philosophy and purpose regard being had to the fact that these terms are
basically elastic and are to be applied in proper perspective to the obtaining
fact-situation.
(iii) Substantial justice being paramount and pivotal the technical
considerations should not be given undue and uncalled for emphasis.
(iv) No presumption can be attached to deliberate causation of delay but, gross
negligence on the part of the counsel or litigant is to be taken note of.
(v) Lack of bona fides imputable to a party seeking condonation of delay is a
significant and relevant fact.
(vi) It is to be kept in mind that adherence to strict proof should not affect
public justice and cause public mischief because the courts are required to be
vigilant so that in the ultimate eventuate there is no real failure of justice.
(vii) The concept of liberal approach has to encapsule the conception of
reasonableness and it cannot be allowed a totally unfettered free play.
(viii) There is a distinction between inordinate delay and a delay of short
duration or few days, for the former doctrine of prejudice is attracted whereas
to the latter it may not be attracted. That apart, the first one warrants strict
approach whereas the second calls for a liberal delineation.
(ix) The conduct, behaviour and attitude of a party relating to its inaction or
negligence are relevant factors to be taken into consideration. It is so as the
fundamental principle is that the courts are required to weigh the scale of
balance of justice in respect of both parties and the said principle cannot be
given a total go by in the name of liberal approach.
(x) If the explanation offered is concocted or the grounds urged in the
application are fanciful, the courts should be vigilant not to expose the other
side unnecessarily to face such a litigation.
(xi) It is to be borne in mind that no one gets away with fraud,
misrepresentation or interpolation by taking recourse to the technicalities of law
of limitation.
(xii) The entire gamut of facts are to be carefully scrutinized and the approach
should be based on the paradigm of judicial discretion which is founded on
objective reasoning and not on individual perception.
(xiii) The State or a public body or an entity representing a collective cause
should be given some acceptable latitude.
To the aforesaid principles we may add some more guidelines taking note of
the present day scenario. They are:
(a) An application for condonation of delay should be drafted with
careful concern and not in a half hazard manner harbouring the notion
that the courts are required to condone delay on the bedrock of the
principle that adjudication of a lis on merits is seminal to justice
dispensation system.
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 (b) An application for condonation of delay should not be dealt with in
a routine manner on the base of individual philosophy which is
basically subjective.
(c) Though no precise formula can be laid down regard being had to
the concept of judicial discretion, yet a conscious effort for achieving
consistency and collegiality of the adjudicatory system should be made
as that is the ultimate institutional motto."
9 . From the principles laid down above, this Court finds that there is an inordinate
delay of 278 days which is merely on account of carelessness and negligence on the
part of the petitioner which goes unexplained. As sufficient cause being condition
precedent for the exercise of discretion by the court for condoning the delay and as the
explanation offered is misappropriate, non-satisfactory, and convincing, the court below
rightly refrained from condoning the delay. The petitioner tries to blame his previous
counsel conducting the matter who alleged to have not informed of the order of
dismissal and thereby causing substantial delay. In one such similar case, where the
blame was thrown on the head of the advocate who appeared in the trial court as a
justification or probable explanation to condone long and inordinate delay, the Hon'ble
Apex Court in Rajneesh Kumar and Another v. Ved Prakash MANU/SC/1240/2024 while
rejecting such arguments, held as under:
"10. It appears that the entire blame has been thrown on the head of the
advocate who was appearing for the petitioners in the trial court. We have
noticed over a period of time a tendency on the part of the litigants to blame
their lawyers of negligence and carelessness in attending the proceedings
before the court. Even if we assume for a moment that the concerned lawyer
was careless or negligent, this, by itself, cannot be a ground to condone long
and inordinate delay as the litigant owes a duty to be vigilant of his own rights
and is expected to be equally vigilant about the judicial proceedings pending in
the court initiated at his instance. The litigant, therefore, should not be
permitted to throw the entire blame on the head of the advocate and thereby
disown him at any time and seek relief."
Even if assuming for a moment that the lawyer concerned was careless or negligent, the
same by itself does not constitute a ground to condone long and inordinate delay as the
litigant owes a duty to be vigilant of his rights.
10. Coming to the other aspect of the petitioner's argument that when an application
under Order VII Rule 11 of CPC is filed, the Court cannot proceed with the trial without
disposing of the same as enunciated in Trust Association of CBCNC's case (supra 1),
there is no quarrel about this proposition, however, in the present case, the petitioner's
application under Order VII Rule 11 came to be dismissed for non-prosecution, hence,
the said judgment has no application to the facts of this case.
11. The petitioner's application under Order VII Rule 11 of CPC essentially seems to
reject the plaint and the counsel for the petitioner while addressing this Court on delay
has also tried to address the matter on the merits of the said application and contended
that there is no proper cause of action for entertaining the suit. This Court is afraid that
in the present revision, the merits of the matter cannot be gone into and at any rate, the
dismissal of the petitioner's application for condoning the delay of 278 days would not
pre-close the petitioner's defense in the suit as it is stated that written statement has
already been filed.

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12. Coming to the last submission, the docket proceedings which are placed before this
Court would indicate that the petitioner appeared to have argued I.A. No.479 of 2018 on
12.03.2019 before II Additional District Judge, Guntur, but subsequently, as issue under
adjudication being commercial dispute, the suit has been transferred to Special Court
for Trial and Disposal of Commercial Disputes at Vijayawada and the said suit was re-
numbered as C.O.S. No.17 of 2018. Therefore, it was incumbent on the part of the
petitioner to re-argue the I.A. afresh and cannot proceed on the basis that the
arguments advanced earlier would suffice. The court below had given umpteen number
of chances for advancing arguments in I.A., however, as petitioner was not vigilant in
concluding his arguments, the court below rightly was compelled to dismiss the
application for default. At any rate this can't be ground of sufficient cause to condone
the delay.
13. In that view of the matter, this Court does not find any merits and accordingly, the
Civil Revision Petition is dismissed. No costs.
As a sequel, miscellaneous petitions pending for consideration, if any, in this case shall
stand closed.
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