IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTYNINETH DAY OF NOVEMBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.3208 of 2010 Between: Danthoju Sujatha and 6 others .. Petitioners AND Danthoju Rajaiah and others .. Respondents ORDER: The dismissal of I.A.No.3 of 2009 in I.A.No.196 of 2004 in O.S.No.51 of 1996 on the file of the Senior Civil Judge’s Court, Miryalaguda, by an order dated 22-06-2010 led the unsuccessful plaintiffs to file the revision. The interlocutory application was supported by the affidavit of the 2nd plaintiff, which alleged that I.A.No.196 of 2004 for passing a final decree in terms of the preliminary decree as per the Advocate Commissioner’s report was filed by a stranger to the suit and no notices were served in I.A.No.196 of 2004 in O.S.No.51 of 1996 on the plaintiffs. The 2nd plaintiff was stated to have refused the notice for himself and the other plaintiffs. But, in fact, nobody approached the plaintiffs for service of any such notices. The 2nd plaintiff claimed that he is not regularly staying in Halia village since four years, while the other plaintiffs are also not residing in Halia village and the plaintiffs were described in I.A.Nos.196 of 2004 and 197 of 2004 to be residing in the addresses specified therein. The 2nd plaintiff claimed the 1st respondent/third party to have played fraud on the court and sent notices, which could not reach the plaintiffs. While the plaintiffs were residing in various places in Andhra Pradesh, notices were published in Janatha Anubandam, which is not in circulation in the entire state. Under such circumstances, an ex parte final decree was passed against the plaintiffs and it was only one week prior to the affidavit dated 2-1-2008 that the plaintiffs came to know about the proceedings and hence, filed a petition to set aside the final decree dated 18-03-2008 along with this petition to condone the delay of 291 days in filing that petition. The 1st respondent, claiming to be the grandson of the deceased 1st defendant/the petitioner in I.A.Nos.196 of 2004 and 197 of 2004 claimed that the 2nd plaintiff was set ex parte on 9-4- 2004 after he refused to take notices in I.A.Nos.196 of 2004 and 197 of 2004 on 29-03-2004. The 2nd plaintiff had personal knowledge of the proceedings. As a testamentary successor of the deceased 1st defendant, he filed I.A.No.196 of 2004, but the 2nd plaintiff did not join him as a party to this petition. The other plaintiffs were set ex parte on substituted service of notice as they were intentionally avoiding service through court and registered post. The notices were published as per the orders of the Court and not on own accord of the third party and final decree was passed following the due process of law. The day to day delay was not explained at all and no reasons for condonation of delay were stated and hence, he desired the petition to be dismissed. The trial Court passed the impugned order after verifying the endorsements of process in I.A.Nos.196 of 2004 and 197 of 2004. The trial Court found that the process server of the court went to Halia village on 1-4-2004 and notices tendered to respondents 2 and 7 and another Satyanarayana were refused by them. They also refused to receive the notices of their sisters, respondents 5 and 6 and the 8th respondent was reported dead, while the 9th respondent was reported to be out of station. The 10th respondent, who is the mother of the third party/grandson, was served with the notice. The process server’s report was noted to have been attested by Dy. Nazir and accepted by the Court. The trial Court also noted that the notices were again ordered through Court and by registered post to respondents-1, 3 to 6 and 9, but were not served on various occasions on which substituted service by publication was ordered, which was made on 20-07-2005. It was after that the respondents in the final decree petition were set ex parte and a final decree was passed. As the respondents 2 and 7 were thus having knowledge of the proceedings and refused the notices, the trial Court felt that the claims of non-service and absence of knowledge cannot be accepted and the petition, considered to be lacking bona fides, was dismissed without costs. The revision petitioners contended that the 1st respondent’s grandson cannot be recognized as the sole heir on the basis of a Will unless such status is decreed by a Civil Court and in fact, it is the revision petitioners, who are the legal heirs of the late 1st defendant and not the 4th defendant’s son. The delay of 291 days was claimed to have not been willful and wanton and hearing the revision petitioners on merits caused no prejudice to the respondents when Janardhan played fraud. Hence, they desired the impugned order to be reversed. Sri Venugopal Rao Pasnooru, learned counsel for the revision petitioners and Sri M. Venkat Ram Reddy, learned counsel for the 1st respondent are heard. The point for consideration is whether the delay in filing the petition to set aside the ex parte final decree deserves to be condoned. Learned counsel for the 1st respondent filed certified copies of the notices sent to respondents-2, 7 and 9 in I.A.Nos.196 of 2004 and 197 of 2004. It is seen from the endorsements of return in those notices that the said respondents refused to receive the notices when tendered on 9-7-2007 and consequently, the signatures of the grandson of the 1st respondent and three witnesses were obtained and the notices were returned. The learned counsel for the 1st respondent also filed the copies of the report of the process server along with the returned notices of the respondents in I.A.No.126 of 2007 stating that respondents-2 and 7 refused to receive the notices of themselves or their sisters and that the 10th respondent was served with the notice, while the notices of other respondents except the 8th respondent, who died, were returned. The learned counsel for the 1st respondent also filed the copy of the publication in the newspaper by way of substituted service on respondents-1, 3 to 6 and 9. The learned counsel for the 1st respondent also filed the certified copies of the final decree dated 18-3-2008 in which the plaintiffs-1 to 7 and defendants 3 and 4 were noted to have been set ex parte. The final decree also recorded that Boddupally Janardhan became the legal heir of the 1st defendant in view of the registered Will in his favour dated 9-10-2002. While the preliminary decree between the parties has admittedly become final, the grandson of the 1st defendant relying on the registered Will, filed I.A.Nos.196 of 2004 and 197 of 2004 for passing the final decree and for appointment of an Advocate Commissioner for the purpose respectively and the copy of the advocate commissioner’s report in I.A.No.197 of 2004 filed by the revision petitioners themselves shows that the Advocate Commissioner issued notices to the defendants and the plaintiffs on 9-12-2005 and on behalf of the plaintiffs, one D. Satyanarayana (D-7) sought for a week’s time to call and intimate the other plaintiffs. The advocate commissioner accordingly adjourned the execution of warrant, which also may indicate the incorrectness of the claim of total absence of knowledge about the proceedings leading to passing of a final decree against the plaintiffs. The plaintiffs were very much represented by a counsel till the passing of the preliminary decree on 1-4-2002. In any view, the certified copies of the proceedings filed by the learned counsel for the 1st respondent show that the claim of the 2nd plaintiff in his affidavit in support of the application that no one ever approached him or the other plaintiffs to serve the notices cannot be preferred as against the report of the process server of the court supported by attestation of his endorsements by three witnesses of the village. The addresses given in I.A.Nos.196 of 2004 and 197 of 2004 by the grandson of the 1st defendant were not different from those given in the suit by the plaintiffs themselves and any fraud played in sending the notices through court and by registered post cannot be considered probablised in the light of the positive report of the process server while returning the notices. Publication in a particular newspaper in circulation in the area by way of substituted service of notices was ordered by the court and not the choice of the grandson of the 1st defendant to presume any fraud in respect of the same. In the light of the contents of the report of the Advocate Commissioner and the reports of the process server about the return of notices, the revision petitioners/plaintiffs cannot be considered to be stating the truth in claiming about the absence of knowledge of the proceedings till about a week prior to 2-1-2009. As to why the court Field Assistant came to the 2nd plaintiff’s house a week prior to 2-1-2009 when the revision petitioners came to know the proceedings in I.A.No.196 of 2004 was not stated and under the circumstances, the factual conclusions of the trial Court with specific reference to the proceedings on record about the personal knowledge at least respondents-2 and 7 in I.A.Nos.196 of 2004 and 197 of 2004 cannot be considered incorrect and such factual background indicating lack of bonafides and merits in the request for condonation of delay of 291 days cannot be construed as an unjustifiable conclusion. Learned counsel for the 1st respondent also referred to Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project and another[1], in which it was laid down that incorrect statement made in the application seeking condonation of delay itself is sufficient to reject the application without any further inquiry as to whether the averments made in the application reveal sufficient cause to condone the delay and that a party taking a false stand to get rid of the bar of limitation should not be encouraged to get any premium on the falsehood on its part by condoning delay. The Apex Court relied on Binod Bihari Singh v. Union of India (1993 (1) SCC 572) for reiterating the proposition. The Apex Court also pointed out that the power to condone the delay rests with the court in which the application was filed beyond time and ordinarily the superior court may not interfere with such discretion even if some error is to be found in the discretion so exercised by the court. The Apex Court also pointed out that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Court helps those who are vigilant and “do not slumber over their rights”. The Supreme Court also referred to an earlier precedent laying down that even if the sufficient cause has been shown, a party is not entitled to the condonation of delay in question as a matter of right and this aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage, the diligence of the party or its bona fides may fall for consideration. In the present case, while the incorrectness of the claims of the 2nd plaintiff in his affidavit about the total ignorance of the earlier proceedings is probablised by the material on record perused by the trial Court and this court and no interferable error appears to have been committed by the trial Court in exercise of its judicial discretion against condoning the delay. Diligence and bonafides being relevant factors operate against the revision petitioners. Learned counsel for the revision petitioners relied on Nagulapu Raju v. Tirupathi[2] wherein it was observed that existence of sufficient cause under Section 5 of the Limitation Act is always open to a liberal construction. While it is true that every effort should be directed against determination on merits in accordance with law and not on technicalities, it was also noted in the same decision that extension of period of limitation cannot be on equitable grounds and the provisions of the Limitation Act should be strictly followed though the court will not adopt a too rigid and technical approach in construing the truth or otherwise of the grounds raised in support of the request for condonation of delay. On facts, in that case, in the light of the undisputed deaths of the two counsel of the defendant during the relevant period and the probability of the defendant being sick at the relevant times, the delay was ordered to be condoned on appropriate terms in order to give a reasonable opportunity to the defendant therein to have her defence decided on merits. Here, in contrast, the factual matrix presents totally a different picture of the probability of the revision petitioners having knowledge of the proceedings in I.A.Nos.196 of 2004 and 197 of 2004 since the tender of notices to them by the process server of the court and refusal of the same by some of them, but still they neither participated in the court proceedings nor were vigilant in approaching the court within or after the period of limitation. As it is not the length of the delay, but the reasons for the delay that matter, the delay of 291 days could not have been justifiably condoned and the restricted revisional jurisdiction of this court cannot be invoked to interfere with the reasoned order of the trial Court. Learned counsel for the 1st respondent had in fact submitted that the final decree in question was successfully executed and nothing further survives to be done by the court in this regard. Even irrespective of the same, the revision has to fail on merits. Accordingly, the Civil Revision Petition is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 29-11-2010 Ksn [1] (2008) 17 Supreme Court Cases 448 [2] 2009 (TLS) 441619