IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: AT HYDERABAD FRIDAY, THE FIFTEENTH DAY OF APRIL, TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.M.P.No.136 OF 2011 IN S.A.No.341 OF 1996 Between: Kalathuru Krishna Reddy …Petitioner A n d Sri Swamy Hathiramjee Mutt, Tirupathi Rep. by Sri Mahant Arjundoss, Tirupathi and others …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.M.P.No.136 OF 2011 IN S.A.No.341 OF 1996 ORDER: This petition is filed under Section 5 of the Limitation Act for condoning the delay of 1431 days in filing the application to restore S.A.No.341 of 1996. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the records. 3. The first respondent herein filed the suit O.S.No.214 of 1971, on file of the II-Additional District Munsif, Tirupati against the petitioner and others for recovery of possession of the plaint schedule lands and for damages, past and future. The first respondent claimed that the schedule lands belong to Sri Hatiramji Mutt and the lease obtained by the petitioner and others from the then mahant paying Rs.3/- per acre on 15-08-1954 was not valid. The petitioner and other defendants contested the suit. The suit was decreed by judgment and decree dated 21-03-1977. The petitioner and other defendants filed appeal in A.S.No.86 of 1977 before the file of the Subordinate Judge, Tirupati and the same was allowed by judgment and decree dated 04-11-1985. The first respondent filed S.A.No.339 of 1986 and this Court allowed the said appeal and remanded the matter to the lower appellate Court, by judgment dated 18-01-1993. The said appeal which was re-numbered as A.S.No.12 of 1996 was dismissed by judgment and decree dated 19-04-1996, confirming the judgment and decree dated 21-03-1977 in O.S.No.214 of 1971. The petitioner and others filed S.A.No.341 of 1996 before this Court. While the matter was coming up for hearing, the same was dismissed for default on 17-10-2006 as there was no representation on behalf of the appellants. Thereafter, the first respondent filed O.E.P.No.326 of 2007 for delivery of possession. On 19-01-2011, the order of delivery of possession was passed in O.E.P.No.326 of 2007 by the I-Additional Junior Civil Judge, Tirupati. In pursuance of the same, the Amin of the Court visited the suit property on 24-01-2011 for effecting delivery of possession. According to the petitioner, he came to know about the dismissal of the second appeal for default only when the Amin visited the suit for effecting delivery of possession. He, therefore, filed an application for restoration of the appeal along with the present application SAMP.No.136 of 2011 for condoning the delay of 1431 days in filing the restoration petition. 4. The first respondent-Mutt filed a counter in SAMP.No.136 of 2011 opposing the application and inter alia contending that the petitioner herein was arrayed as judgment debtor No.1 in O.E.P.No.326 of 2007 and notice was served on him in E.A.No.280 of 2008 and E.A.No.269 of 2009 and entered appearance before the execution Court through an Advocate Sri M.Vinod Kumar by filing vakalat on behalf of the petitioner/judgment debtor No.1 and judgment debtors 6 and 8 on 06-01-2009 and, therefore, the petitioner was aware of the dismissal of the second appeal even by January, 2009 and his present plea that he was not aware of the same till the Amin visited the lands for effecting delivery of possession in January, 2011, is clearly false. 5. The suit was filed by the first respondent in the year 1971 for recovery of possession and for damages. The suit was decreed inter alia holding that there was no valid and subsisting lease in favour of the petitioners/defendants and they were treated as trespassers. Subsequently, the appeal filed by the petitioner/D-1 in A.S.No.86 of 1977 was allowed by the Subordinate Judge’s Court, Tirupati on 04-11-1985 and in S.A.No.339 of 1986 this Court on 18-01-1993 remanded the matter for fresh disposal by the lower appellate Court and after remanding the said appeal it was re-numbered as A.S.No.12 of 1996 and the said appeal was dismissed by the III-Additional District Judge, Tirupati. Assailing the same, S.A.No.341 of 1996 was filed by the petitioner/D-1 and others. On 17-10-2006, the second appeal was dismissed for default as none appeared for the appellants and there was no representation on their behalf in spite of posting the matter under the caption ‘for dismissal’. For more than four years, no steps were taken by the petitioner for restoration of the second appeal and the present application is filed on 28-01-2011. The only ground urged in the present affidavit filed in support of the application is that the appellants have entrusted the matter to one M.Parandama Reddy, one of the appellants and he appears to have entrusted the second appeal to counsel Sri A.T.M.Rangaramanujam, who filed the second appeal and subsequently there was no communication from the said counsel and, therefore, the petitioners were under the bona fide impression that the second appeal was still pending and only after knowing about the dismissal of the second appeal, they approached their counsel Sri T.M.Chayapathy at Tirupati who advised them to file necessary application before this Court and hence the present petition. 6. According to the petitioner, they came to know that their counsel Sri A.T.M.Rangaramunajam shifted his practice to Delhi and so could not appear before this Court when the matter was listed for hearing. In the affidavit filed in support of the application, reference is made to the execution proceedings in O.E.P.No.326 of 2007. According to the first respondent, in the said E.P., the petitioner herein was served with notices and he entered appearance through counsel Sri M.Vinod Kumar by filing vakalat on 06-01-2009 and, therefore, the petitioner was aware of the dismissal of the second appeal even by 06- 01-2009 and subsequently also for more than two years no steps were taken by the petitioner for restoration of the appeal and it only exposes the total lack of bona fides on the part of the petitioner in filing the present application. In support of the said plea, the first respondent filed copy of the execution petition in O.E.P.No.326 of 2007, wherein in column No.4 it is specifically stated that the appeal was dismissed on 17-10-2006. The first respondent-decree holder filed E.A.No.267 of 2009 seeking to bring on record Mittapalle Krishna Reddy as legal representatives of the deceased second judgment debtor Mittapalle Govindu Reddy as R-10 and Mittapalle Chenchu Reddy, legal representative of deceased fifth judgment debtor Mittapalle Chenga Reddy as R-11 in the EP. As seen from the copies of the docket proceedings of E.A.No.267 of 2009, the first respondent who has entered appearance through counsel took time for filing counters on a number of occasions and ultimately on 24-09-2010, after hearing the matter, the said petition was allowed. It appears that R-10 and R-11 filed two applications in E.A.No.104 of 2011 and 57 of 2011 respectively for reopening the execution proceedings and the said petitions were allowed by the execution Court on 28-01- 2011. Certified copy of vakalat filed by the petitioner- K.Krishna Reddy and M.RaghunathA Reddy- 6th appellant and A.Muni Krishnaiah-8th appellant on 06-01- 2009 through the counsel Sri M.Vinod Kumar in first E.P.No.326 of 2007 would clearly establish that the petitioner herein had knowledge of the dismissal of the second appeal on 17-10-2006, even on the date he filed the vakalath on 06-01-2009 but, however, no steps were taken even thereafter for over two years for restoration of the appeal. 7. It is well settled that before seeking condonation of delay under Section 5 of the Limitation Act, the petitioner shall establish that there was sufficient cause by which the delay was occasioned. In PERUMON BHAGVATHY DEVASWOM, PERINADU VILLAGE v. BHARGAVI AMMA (DEAD) BY LRs AND OTHERS[1], the Apex Court laid down the principles regarding condonation of delay as follows:- i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words `sufficient cause' in section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the appellant. (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refilling the appeal after rectification of defects. (v) Want of `diligence' or `inaction' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal. 8. In the present case, the delay is clearly on account of lack of bona fides and deliberate inaction and negligence on the part of the petitioner, since no application was filed for restoration of the appeal for about two years even after the petitioner came to know in January, 2009 that the second appeal was dismissed in October, 2006. Firstly, the petitioner sought condonation of the delay of four years and above on the plea that there was no communication from his counsel Sri A.T.M.Ranagramanujam and, therefore, he was not aware of the dismissal of the second appeal and it was only in January, 2011 when the Amin came to the suit lands, he came to know about the same. 9. There is nothing on record to show that Sri A.T.M. Rangaramanujam shifted his practice to Delhi and, therefore, there was no communication from him. Having preferred the second appeal, it was expected of the appellants to exercise due diligence at least to the extent of keeping a watch over the proceedings and find out their stage from the counsel. There are as many as seven appellants who are alive at that time, including the petitioner, and none of them ever bothered to know the stage of the appeal. In order to cover up their inaction and laches, they seek to throw the blame on the counsel stating that they have not received any communication from him. Even the said explanation does not merit consideration in view of the fact that appellants have entered appearance in E.P.No.327 of 2007 by filing a vakalath on 06-01-2009 through counsel and in spite of having knowledge on 06-01-2009 about the dismissal of the second appeal on 17-10-2006, the petitioner or other appellants have not taken any steps for over two years for restoration of the appeal. This conduct on the part of the petitioner clearly shows utter lack of bona fides, besides amounting to deliberate inaction on their part and when such is the case liberal approach in the matter of interpreting the expression ‘sufficient cause’ is not warranted. One of the principles laid down in the above decision is that the decisive factor in condonation of the delay, is not the length of delay, but sufficiency of a satisfactory explanation. In the present case, the explanation offered for condonation of the delay which, of course, in the present case is 1431 days, is neither sufficient nor satisfactory for the reasons stated supra. Even assuming for a moment that the petitioner was under a bona fide impression that the appeal was pending because there was no intimation to the contra from his counsel and because he is not expected to attend the Court for the hearing of the appeal, still there is absolutely no justification for his inaction for two years since January, 2009, when he came to know about the dismissal of the second appeal. 10. In a recent decision in BALWANT SINGH (DEAD) v. JAGDISH SIGNH AND OTHERS[2], the Apex Court, after referring to the decision in PERUMON BHAGVATHY DEVASWOM’s case (1 supra) and extracting the principles enunciated therein, held as follows:- “Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi-benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications.” In the above case, the appellant died on 28-11-2007 and the application to bring his legal representatives on record was filed on or about 15-04-2010 with a delay of 778 days. Except a vague averment that the legal representatives were not aware of the pendency of the appeal, there was no other justifiable reason stated in the petition. The Court held that there was no reason or sufficient cause shown as to what steps were taken during the period and why immediate steps were not taken even after they admittedly came to know about the pendency of the appeal. It was found that one of the appellants who appeared as a witness in the trial was fully aware of the proceedings, but still did not inform the counsel of the death of his father and such abnormal conduct on his part led to the finding that the applicants therein miserably failed to show sufficient cause for condonation of the delay of 778 days. It was also observed that the applicants were totally callous in pursuing their appeal and they acted irresponsibly and even with negligence and they have not approached the Court with clean hands. It was held that the applicant, who seeks “aid of the Court for exercising its discretionary power for condoning the delay is expected to state correct facts and not state lies before the Court. Approaching the Court with unclean hands itself is a ground for rejection of such application”. 11. In the present case also, the petitioner has nowhere stated in the affidavit filed in support of the application that he entered appearance through counsel in E.P.No.326 of 2007 on 06-01-2009 and no explanation is also offered for his inaction subsequent to 2009. The petitioner has, thus, suppressed the factum of filing of vakalat in the execution court in E.P.No.326 of 2007 on 06-01-2009 and such conduct on his part does not enable him to seek aid of the Court and that itself is a ground for rejection of the application. In the above decision, reference is made to UNION OF INDIA V. RAM CHARAN[3] wherein a three-Judge Bench of Apex Court while dealing with an application filed under Order XXII Rule 9 CPC for bringing the legal representatives of the deceased on record beyond the prescribed period of limitation expressed the view that mere allegations about belated knowledge of death of the opposite party would not be sufficient and the Court applied the principle of “reasonable time” even to such situations. The above decision also makes reference to P.K.RAMACHANDRAN v. STATE OF KERALA[4] wherein it was held as follows: “Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Courts was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained.” It was further held as follows: “The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.” In the light of the principles laid down by the Apex Court in the above decisions and the explanation offered by the petitioner for condonation of delay of 1431 days being neither reasonable nor satisfactory and not revealing any sufficient cause and, on the other hand, the negligence, inaction besides lack of bona fides on the part of the petitioner being tell-tale, it is considered not a fit case at all to condone the abnormal delay of 1431 days in filing the application for restoration of the second appeal. There are absolutely no merits in the application. 12. In the result, SAMP.No.136 of 2011 is dismissed. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 15th April, 2011 Lrkm [1] 2008(6) ALD 63 SC = (2008) 8 SCC 321 [2] (2010) 8 SCC 685 [3] AIR 1964 SC 215 [4] (1997) 7 SCC 556