THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.1925 of 2010 Date:20th September, 2010 Between: Ganta Venkata Subbamma ….Petitioner and Kollu Parvathi .…Respondent *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.1925 of 2010 ORDER: This Civil Revision Petition under Section 115 CPC is directed against the order dated 24.11.2009 passed in I.A.No.262 of 2006 in O.S.No.212 of 1999 on the file of the Junior Civil Judge, Kodad, Nalgonda District, whereby and whereunder the learned Junior Civil Judge dismissed the application filed under Section 5 of the Limitation Act, 1963, to condone the delay of 6 years, 3 months and 16 days in filing the petition under Order 9, Rule 13 CPC to set aside the ex parte decree dated 10.03.2000 passed in O.S.No.212 of 1999. 2. The petitioner is the defendant and the respondent is the plaintiff in O.S.No.212 of 1999 on the file of the Junior Civil Judge, Kodad, Nalgonda District. The plaintiff filed the suit for specific performance of the agreement of sale dated 21.02.1996 executed by the defendant in respect of house plots bearing Nos.36 and 37 admeasuring 469 square yards in Kodada Gram Panchayat. The plaintiff took out summons in the suit to the defendant to her Nelakondapalli address. The summons addressed to the defendant returned unserved with an endorsement that the defendant left Nelakondapalli village to her parental home in Thammara village. Even the registered notice sent by the plaintiff prior to filing of the suit to the defendant returned unserved with an endorsement that addressee left Thammara village and shifted her residence to Hyderabad, but her correct address at Hyderabad not known. Service of summons on the defendant came to be effected by way of publication in PRAJASAKTHI daily newspaper. Proof of publication was filed by the plaintiff in the suit. The defendant did not enter appearance either in person or through a counsel on 28.02.2000. Consequently, the defendant came to be set ex parte. The plaintiff examined PW.1 and marked three documents as Exs.A1 to A3 on 10.03.2000. An ex parte decree came to be passed on the even date. The plaintiff filed E.P.No.13 of 2003 on the file of the Junior Civil Judge, Kodad for execution of the registered sale deed pursuant to the decree granted in O.S.No.212 of 1999. Notice taken out to the defendant/JDR initially returned unserved. A fresh notice was ordered on 14.07.2005. Notice is stated to have been refused by the defendant/JDr and consequently, an ex parte order came to be passed against her on 18.08.2005. The plaintiff/decree holder filed a draft sale deed and the sale deed came to be executed by the Court on behalf of the defendant/JDr. Sale certificate came to be issued on 26.11.2005. The defendant filed petition under Order 9, Rule 13 CPC to set aside the ex parte decree dated 10.03.2000 passed in O.S.No.212 of 1999. She also moved I.A.No.262 of 2006 to condone the delay of 6 years, 3 months and 16 days in filing the petition under Order 9, Rule 13 CPC. The defendant stated in the affidavit filed in support of the delay condonation petition that she came to know of the ex parte decree 10 days prior to her moving the application. According to the defendant, the plaintiff came to her house 10 days prior to 27.06.2006 and threatened her with dire consequences by saying that she got a decree and also obtained a registered document. It is further stated by the defendant in the affidavit that the plaintiff, knowing fully well that she has been residing at Kodad, took out summons to her Nelakondapalli address and got an endorsement on the notice dated 27.07.1999 as if she has been residing at Thammara village. For better appreciation of the plea of the defendant advanced to condone the delay in filing the petition to set aside the ex parte decree, I deem it appropriate to refer paras.3 and 4 of the affidavit filed in support of the petition, which read as hereunder: “3. That the respondent/plaintiff recently came to my house which is under construction (10) days back and threatened me with dire consequences by saying that she got a decree from this Hon’ble Court, so also a registered document was executed by this Hon’ble Court in her favour and left the place, upon which I made enquiry with S.R.O., Kodad and got the suit number and E.P. number. I approached Sri S.Radha Krishna Murthy, Advocate, Kodad and given my vakalat to verify the entire proceedings of O.S.No.212/1999 and the E.P.No.13/2003 and found the following irregularities. 4. That the respondent shown my address at Nelakondapalli without any description in the cause title. In fact I never stayed at Nelakondapalli as stated by the respondent and my parents residence is at Thammara and I am residing in a rented house at Khammam cross-road of Kodad for the last (10) yeas for education purpose of my daughter. The sale deed possessed by me dated 07.02.1995 also disclosing that I am resident of Kodad, but not Nelakondapalli. I do not know how the respondent/plaintiff shown my address at Nelakondapalli. It is also further submitted on my verification it is evident that from the record the village secretary of Nelakondapalli also endorsed on the process dated 27.10.1999 by mentioning that I am residing at Thammara. Having knowledge of my place of residence the counsel for the respondent also paid the process to Thammara address by deleting my address from Nelakondapalli and got the publication with wrong address. The respondent/plaintiff also not changed the cause title at any time, so also not changed in the E.P. proceedings even in filing the publication by showing my address at Thammara and she got ex parte decree by playing fraud with the court. The E.P. proceedings also clearly discloses from 21.03.2003 onwards which goes to show the fraud played by the respondent/plaintiff with the Hon’ble Court in getting the ex parte order without following the procedure. The docket proceedings of the E.P. discloses that hand over petition is allowed on 17.08.2004 by showing my address at Nelakondapalli though I am not residing at there and that hand over summons also not served on me by the Advocate till 16.12.2004 and the Hon’ble Court ordered fresh notice on 02.02.2005 and 07.06.2005, 14.07.2005. But the respondent/plaintiff did not complied the direction of the Hon’ble Court and the counsel for the respondent/plaintiff got endorsement of Secretary, Panchayat Nelakondapalli dated 25.09.2004 on P.S.A.No.1821/2004 and also endorsed by the advocate Sri Sk.Ramzan Basha stating that I refused to receive notice and return the same before this Hon’ble Court. The report of the advocate also not disclosing the date on which he approached me along with whom he approached me is silent and the date on the notice alleged to have been refused by me with the endorsement of the secretary panchayat, Nelakondapalli dated 25.09.2004 and the date mentioned in the notice and the docket proceedings subsequent to 25.09.2004 are quite contrary to the docket proceedings from 10.09.2004 onwards on the E.P. docket. If that endorsement of the Advocate and the panchayat secretary is correct, how the subsequent docket proceedings upto 14.07.2005 shows that notice await and order for issue of fresh notice. All of sudden on 18.08.2005 the docket proceedings shows that I refused the notice. As such I request the Hon’ble Court to peruse the docket proceedings so as to come to a conclusion of the fraud played by the respondent/plaintiff.” 3. The respondent/plaintiff filed counter resisting the application. It is stated in the counter that the respondent has no need to play fraud and instead it is the petitioner, who is playing fraud with the Court. Since the petitioner knew well that this respondent, after obtaining sale deed through the process of the Court, disposed of the same to third parties. The respondent had already disposed of the property to third parties, the question of the respondent going to the house of the petitioner and threatening her with dire consequences does not arise. The petitioner is permanent resident of Nelakonapalli village as per the sale agreement and as such, the respondent filed the suit and execution petition by giving the permanent address of the petitioner. Even if the petitioner is residing at Thammara or Kodad, her residence at Thammara and Kodad is only a temporary. The petitioner has not given all the dates of postings mentioned in the docket proceedings and she has chosen to give only few dates, which are convenient to her. The petitioner has not approached the Court with clean hands and therefore, the petition is liable to be dismissed. 4. Neither party adduced evidence in support of their respective contentions. The leaned Junior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, proceeded to dismiss the application, by order dated 24.11.2009 on the ground that the petitioner failed to give sufficient and satisfactory reasons for condoning such a long delay in filing the petition under Order 9, Rule 13 CPC. The said order is assailed in this revision. 5. Notice before admission came to ordered on 11.06.2010. The respondent entered appearance through a counsel. 6. The petitioner filed CRPMP Nos.4750, 4911 and 5533 of 2010 to receive additional affidavits and also additional material papers. The additional affidavits are only to elucidate the grounds of revision. No counter-affidavit has been filed by the respondent/plaintiff resisting the petitions. Therefore, the three CRPMPs are hereby ordered. 7. Heard learned counsel appearing for the petitioner and leaned counsel appearing for the respondent. 8. Learned counsel appearing for the petitioner submits that the petitioner never resided in Nelakondapalli village and even the suit notice sent to the petitioner by the respondent returned unserved on the ground that the addressee shifted her residence to Thammara village and thereafter to Hyderabad. A further submission has been made that the respondent knowing fully well the residence of the petitioner at Kodad took out notice to her wrong address and got the notices/summons returned and thereafter filed an application seeking substitute service and that the very object of the respondent in opting for substitute service is to keep the petitioner in dark about the suit proceedings and obtain a decree to knock away the suit schedule property. A further contention has been advanced by the learned counsel that the suit agreement itself is fabricated and therefore, the petitioner has a valid defence to resist the claim of the respondent/plaintiff. In support of his submissions, reliance has been placed on the decisions of the Supreme Court in S.P.Chengalvaraya Naidu v. Jaghannath[1]; M.K.Prasad v. P.Arumugam[2] and the decision of the Madras High Court in P.Chandraksekaran v. A.S.Chinnamuthu[3] and the decision of the Gauhati High Court in Radheshyam Agarwal v. M/s.Ramwater Deeppak Kumar Property[4]. 9. In M.K.Prasad v. P.Arumugam’s case (2 supra), the Supreme Court held that in construing Section 5 of the Limitation Act, the Court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. The Court has a discretion to condone or refuse to condone the delay as is evident from the words “may be admitted” used in the section. The Supreme Court referred the earlier decision in N.Balakrishnan v. M.Krishnamurthy (AIR 1998 SC 3222) with approval. In N.Balakrishnan’s case, the Supreme Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing mala fide or deliberate delay as a dilatory tactics, the Court should normally condone the delay. However, in such case, the Court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. Para.9 of the said judgment needs to be noted and it is thus: “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 the 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 free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court.” 10. Learned counsel appearing for the respondent/plaintiff submits that in the agreement of sale, the petitioner has been shown as resident of Nelakondapalli village and in which case, the respondent taking out summons in the suit to the petitioner to her Nelakondapalli address cannot be found fault. He would also contend that the petitioner knowing fully well of the suit proceedings did not choose to contest the suit and at this distance of time, the ex parte decree dated 10.03.2000 passed in O.S.No.212 of 1999 cannot be set aside and more so, when the property has been passed on to the third parties much prior to the petitioner moving the application under Order 9, Rule 13 CPC. 11. I have gone through the agreement of sale dated 21.02.1996, certified copy of which has been filed along with CRPMP No.4911 of 2010. The petitioner is the vendor and her residence has been shown as Nelakondapalli village. Even the notice sent to the petitioner prior to filing of the suit returned with an endorsement that the addressee has not been residing at Nelakondapalli village and instead she has been residing at Thammara village. The postal endorsement further reveals that she has not even residing at Thammara village and shifted her residence to Hyderabad, but her correct address at Hyderabad is not known. The question that arises for consideration is, whether the petitioner has ever resided at Nelakondapalli village or Thammara village? The suit agreement indicates that she is a resident of Nelakondapalli village. Therefore, burden lies on the petitioner to show that she never resided either at Nelakondapalli or Thammara villages and instead she has been residing at Kodad. The petitioner filed various documents along with CRPMP Nos.4911, 4750 and 5533 of 2010 to substantiate her contention that she has never resided at Nelakondapalli village or Thammara village. The authenticity of the documents is required to be proved by adducing evidence. In that view of the matter, I deem it appropriate to set aside the order dated 24.11.2009 passed in I.A.No.262 of 2006 in O.S.No.212 of 1999 on the file of the Junior Civil Judge, Kodad, Nalgonda District and remand the matter back to the trial Court for fresh disposal after giving opportunity to both the parties to adduce evidence in support of their respective contentions. 12. Accordingly, the Civil Revision Petition is allowed at the admission stage setting aside the order dated 24.11.2009 passed in I.A.No.262 of 2006 in O.S.No.212 of 1999 on the file of the Junior Civil Judge, Kodad, Nalgonda District, and the matter is remanded to the trial Court for fresh disposal. No order as to costs. ______________________ B.SESHASAYANA REDDY, J. Dated:20th September, 2010. cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.1925 of 2010 Date:20th September, 2010. [1] AIR 1994 S.C. 853 [2] AIR 2001 S.C. 2497 [3] 2002 (4) CCC 379 (Madras) [4] 1996 A I H C 1870