1. CMP No. 14388 of 2003 is filed to condone the delay of 81 days in representing the above CCCA (SR) while CMP No. 15758 of 2003 is filed to condone the delay of 369 days in filing the above CCCA (SR) against the order dated 18.9.2001 passed in OS No. 282 of 2001 by the learned XIII Addl. Chief Judge (Fast Track Court), City Civil Court, Hyderabad.
2. The appellant herein who is the plaintiff before the courts below entered into provisional agreement of sale with the first respondent herein, since died, for purchase of Flat No.12, Block No. 32 MIGH, II Phase, situated at baghlingmpally, Hyderabad, who purchased the same from the second respondent herein under self financing scheme, for a total consideration of Rs.72,000/-. It is averred that the petitioner herein has paid the entire amount which was acknowledged by the first respondent and executed a pacca agreement of sale dated 4.9.1985 in favour of the petitioner and delivered possession of the land on the same day and since that time the petitioner has been in possession of the house, but since the first respondent did not obtain sale deed from the 2nd respondent Housing Board, he did not execute the sale deed in favour of the petitioner. The petitioner, therefore, filed OS No. 756 of 1993 before the II Addl. Judge, City Civil Court, Hyderabad, for specific performance of the agreement of sale dated 4.9.1985 and to execute a sale deed in favour of the petitioner. She also filed IA No. 728 of 1993 for temporary injunction restraining the 1st respondent from alienating the flat which was granted by order dated 14.7.1993. While so, the first respondent died on 29.1.1997 and the respondents 3 to 7 are his legal heirs. The petitioner was not aware of the death of first respondent until 18.9.1997 on which date a memo came to be filed before the court stating the said fact. The petitioner, therefore, filed IA (SR) No. 1196 and 1198 on 17.3.1998, which were returned by the office with certain objections The counsel has not taken return of those papers for a considerable time from the office due to inadvertence. Therefore, fresh applications vide IA Nos. 6 and 7 of 2000 were filed on 22.12.1999 seeking to condone the delay in filing the L. R. petition and to set aside the abatement order, respectively. The L.R. petition in IA No. 1375 of 2000 was also filed. In the meantime, the suit along with I.As. was transferred to the court of XIII Addl. Chief Judge (Fast Track Court), City Civil Court, Hyderabad, and the same was numbered as OS NO. 282 of 2001 and IA Nos. were numbered as IA Nos. 53, 54 and 55 of 2001 respectively. While, the matter stood thus, on 5.12.2000, the respondents 3 to 7 i.e. L.Rs. of the first respondent herein were called and they were set exparte for their absence and subsequently, it was allowed on payment of costs of Rs.500/-. The counsel for the petitioner offered to pay the costs to the 5th respondent, who is son of the first respondent and an Advocate. It is further averred that the counsel for the petitioner was directed to deposit the costs by 29.1.2001 in the Civil Court Deposit, and the respondents 3 to 7 filed IA No. 25 of 2001 to set aside the exparte order dated 5.12.2000. The court below dismissed IA No. 53 of 2001, which was filed to condone the delay in filing the petitioners to set aside the abatement caused due to the death of the first respondent, without considering the facts and circumstances more particularly when the conditional order dated 5.12.2000 was not complied with and, therefore, the court has no jurisdiction to suo motu set aside the order passed in IA No. 6 of 2000 and consequently, the suit was also dismissed as abated.
3. Aggrieved by the dismissal order, CCCA (SR) was filed with a petition to condone the delay in filing the application. In the affidavit, filed in support of the petition, it is averred that the counsel for the petitioner also died of cardiac arrest and IA No. 53 of 2001 was dismissed by order dated 18.9.2001 for non-prosecution. The petitioner was not aware of the order and, therefore, the delay that is caused in filing these applications is neither willful nor due to negligence and if the delay is not condoned irreparable loss would result as the entire sale consideration has been paid to the first respondent.
4. In the counter filed by the respondents 3 to 7 - L.Rs. of the first respondent, it is stated that the suit was dismissed as abated on 28.9.2001, therefore, now the delay condonation petition is not maintainable in a dismissed suit and, therefore, the petitioner is not entitled to raise issues on merits. It is stated that the first respondent paid Rs.60,000/- as cost of the flat to the second respondent and other charges and expenses were yet to be paid by the allottee and therefore, it was not an outright sale, as submitted by the petitioner. It is stated that earlier the petitioner was a resident of Warangal and now residing at Khammam. It is further alleged that one M. Laxma Reddy of Warangal, by filing a Xerox copy of GPA, purported in the name of some other person by name K. Madhava Shastry son of K. Shankara Shastry, illegally knocked away the possession of the flat by Managing with the A.P. Housing Board, pertaining to the deceased respondent No.1. it is further stated that under the APHBSFHS Regulations, 1975, and APHB Act, 1956, the flat has to be enjoyed by the allottee and his blood relations until and unless the Housing Board executed a sale deed in the name of the allottee and any transaction entered into by departing such Regulations will render the same illegal, invalid and unenforceable and, therefore, the first respondent was not the owner of the flat in question till 14.2.2003. It is further alleged that the petitioner herein and others concocted and forged many documents and filed in support of claim of the flat in her name and in the execution proceedings of some money suits, filed by the third parties, decreed against the first respondent and the suit for specific performance of contract was dismissed as long back as on 19.12.1989 and, therefore, the petitioner cannot again re-agitate. It is further stated that the receipts produced by the petitioner in support of claim petition are built up by her and there is difference in the spellings of the name of his father. It is further submitted that the first respondent was allotted flat only on 23.3.1981 and the agreement entered was in respect of flat allotted on 16.2.1981.
5. The respondents have stated several facts relating to the merits of the appeal. For the disposal of this miscellaneous petition, we are concerned with the explanation in respect of delay that has occurred in filing the appeal and whether the delay is properly explained and whether it can be condoned.
6. It is stated that the first respondent died on 29.1.1997 and the petitioner filed petition to set aside abatement and L.R. petition along with a petition to condone the delay of 970 days vide I.A. Nos. 53 of 2001 which was dismissed and consequently, the suit was also dismissed as abated on 28.9.2001 along with other petitions. It is further stated that a Division Bench of this court in W.A. No. 1347 of 1998 ordered eviction of illegal occupants and the Housing Board has executed sale deed of the flat in faovur of respondent No.5 on 15.2.2003 and declared the 5th respondent as owner. It is also averred that the petitioner assisted by the same counsel is harassing the L.Rs. of the deceased allottee.
7. It is further stated that exparte conditional order passed in I.A. No. 6 of 2000 (renumbered IA No. 53 of 2001) was to the effect that the condone delay petition shall be allowed subject to the payment of costs of Rs.500/-s on or before the next date of adjournment, but in the meanwhile the L.Rs. who were not served with any notice in the said petition, returned to Hyderabad and filed I.A. NO. 25 of 2001 (renumbered IA No. 56 of 2001), and it was numbered even before the costs were paid. It is also stated that when the counsel appearing on behalf of the L.Rs. refused to receive the costs, the counsel deposited the cost under Court Deposit and the I.A. No. 25 of 2001 was allowed as uncontested and there was no personal service. It is further averred that the I.A. No. 53 of 2001 was contested by the L.Rs. of the first respondent herein and the said order came to be passed, after elaborate arguments of Mr. T. Seshagiri Rao, Advocate for the petitioner herein and the deponent to the counter, who himself is an advocate; and this fact was conveniently suppressed by the petitioner. It is further averred that since exparte order was passed in I.A. No. 53 of 2001 and the condition of payment of costs was not complied with so far, the exparte order passed in I.A.No. 54 of 2001 (originally IA No. 7 of 2000, the abatement cannot be set aside. When the respondents herein brought to the notice of the court below about this mistake, in exercise of the inherent powers and also following the decision of the Supreme Court, the said I.A. No. 7 of 2000 (renumbered IA No. 54 of 2001) was restored to the file, and the counsel for the L.Rs. thus endorsed that I.A. No. 26 of 2001 is not pressed and, therefore, it came to be dismissed.
8. Insofar as the contention of the petitioner that one of her advocates died and she has no knowledge of the dismissal of the suit, it is stated by the L.Rs. that besides the deceased advocates, there were two more advocates on records prosecuting the case. Hence, she is estopped from contending that she had no knowledge of dismissal of the suit. That apart, it is stated that I.A. No. 53 of 2001 was contested by Mr. T. Seshagiri Rao, Advocate for the petitioner and the order dated 18.9.2001 in the said I.A. and also the orders in I.A.No. 54 of 2001 and 55 of 2001 were passed in his very presence and his presence and the presence of deponent to the counter on behalf of the L.Rs. is recorded in the judicial order. It is also submitted that the counsel Mr. T. Seshagiri Rao and one Mr. E. Rajeshwar Reddy applied for the certified copies of the dismissal orders for filing appeal after inordinate delays of 264 days from the date of dismissal i.e. on 28.6.2002, which itself shows the callous, careless and negligent inaction on the part of the petitioner, which is not explained satisfactorily and, therefore, the delay cannot be excused. That apart, it is stated that after obtaining the certified copies of the orders on 1.8.2002, the appeal was filed on 2.1.2003 and thus there is further unexplained delay of 154 days. It is, therefore, contended that just because one of the advocates engaged by the petitioner died in December, 2002, the petitioner cannot seek condonation of the delay of 416 days in brining the L.Rs. of the respondent and sought to place reliance on a plethora of decisions right from the year 1960 and ultimately sought for dismissal of the application.
9. In the background of these pleadings, now let us examine whether the petitioner is right in contending that she had no knowledge of the dismissal orders passed by the court below and whether the delay can be condoned accepting the reasons enumerated by the petitioner.
10. Admittedly, a conditional exparte order was passed in IA No. 6 of 2000, which is renumbered as IA No. 53 of 2001 to the effect that the delay of 963 days sought to be condoned, shall be condoned on the condition that the petitioner pay costs of Rs.500/- on or before the next date of adjournment. In the meanwhile, the respondents filed IA No. 25 of 2001 (renumbered as IA No. 56 of 2001) praying to set aside the exparte order passed on 5.12.2000 setting the respondents 3 to 7 i.e. the LRs. of the first respondent, exparte, and it was numbered even before the conditional order passed in IA No. 6 of 2000 was complied with. All these facts were suppressed by the petitioner in the affidavit and since the conditional order passed in IA No. 53 of 2001 was not complied with, the abatement caused also cannot be set aside. The court, on notice from the respondents, realizing its mistake, restored the IA 54 of 2001 which was filed to set aside abatement caused due to the death of first respondent.
11. It is also borne out by record that IA No. 53 of 2001 was contested by Mr. T. Sheshagiri Rao, advocate appearing on behalf of the petitioner and orders in IA Nos. 54 and 55 of 2001 were passed in his very presence. It is also contended that the act of the petitioner in applying for the certified copies of the dismissal order for filing appeal after inordinate delay of 264 days i.e. on 28.6.2002 and after obtaining the certified copies of orders on 1.8.2002 filing the appeal with unexplained delay of 154 days on 2.1.2003, itself shows the callous, indifferent and negligence on the part of the appellants in prosecuting the matters.
12. Above all, the contention of the petitioner that the IA (SR) Nos. 1196 of 1998 to 1198 of 1998 marked as Exs. C-1 to C-3 filed on 17.3.1998 were misplaced in the office of the court below and therefore, she again filed the instant IA No. 53 of 2001 does not hold water, in view of the categorical observation of the court below that those applications were returned by the office on 19.3.1998 for complying certain objections and they were not taken back from the office by the petitioner or her counsel for the reasons best known to them and they are still available in the office and at the instance of the respondents counsel, they are preserved by the court. The petitioner, therefore, instead of prosecuting those applications before the court below diligently, has resorted to approach this court misrepresenting the fact that the applications were misplaced by the office.
13. That apart, evidently a memo was filed by the respondents counsel on 18.9.1997, intimating the court that the first defendant died on 29.1.1997 and necessary applications were filed on 17.3.1998, but they were misplaced in the court, (Exs. C-1 to C-3), which are very much available and filed fresh applications without satisfactorily explaining the delay of 963 days. The plethora of decisions relied on by the learned counsel for the petitioner does not improve the case of the petitioner inasmuch as each case has to be decided and looked into on its own merits. There cannot be any hard and fast rule for condoning the delay. Having regard to these circumstances, we have no hesitation in holding that the petitioner cannot contend that she had no knowledge of the dismissal orders passed by the court below and, therefore, the petitioner is consequently disentitled from seeking the relief of condonation of inordinate delay of 963 days in setting aside the abatement caused by the death of the first respondent - first defendant.
14. Therefore, without going into the merits or otherwise of the appeal, we do not find any satisfactory explanation to condone the delay and, therefore, we have no hesitation in holding that the application deserves to be dismissed and is accordingly dismissed. No order as to costs.
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