ORDER

1. This Revision Petition is filed against the order dated 19-3-1999 in IA No.719 of 1999 in ASSR No.3299 of 1999 on the file of the Court of the Chief Judge, City Civil Court, Hyderabad.

2. The respondent filed IA 719 of 1999, under Section 5 of Limitation Act, to condone the delay of 495 days in preferring the appeal against the decree and judgement in OS 5399 of 1994 on the file of V Assistant Judge, Hyderabad. The Revision Petitioner filed his counter opposing the application. The learned Chief Judge, by the order under revision allowed the petition and condoned the delay. Aggrieved thereby, the respondent in the said petition preferred this revision.

3. The point for consideration is whether the learned Chief Judge acted with material irregularity in condoning the delay caused in preferring the appeal by the respondent.

4. The contention of the learned Counsel for the Revision petitioner is that the trial Court mis-construing the order dated 15-2-1999 in CRP No.468 of 1999 passed by this Court allowed the petition on the asumption that there is a direction to permit the respondent to prefer an appeal and contended that since the respondent did not give any explanation for the inordinate delay caused in preferring the appeal the petition is liable to be dismissed. He contended that the respondent had lost the remedy of preferring the appeal in view of Sumera v. Madanlal and others, and Rani Chowdary v. Lt.Col Suraj Jit Chowdary, 1982 SCC 596. He contended that even assuming that the time taken for the disposal of the petition under Order 9 Rule 13 CPC is to be excluded since CRP No.468 of 1999 was disposed on 15-2-1999, and since IA 719 of 1999 was filed on 12-3-1999 i.e., about 27 days after the dismissal of CRP No.468 of 1999 and since no reasons or grounds are mentioned in the affidavit of the respondent for the said delay of 27 days in filing the appeal, the learned Chief Judge was in error in condoning the delay. He placed strong reliance on Jokam Reddy and others v. Gokar Mallaiah, , Muncipal Corporation of Ahmedabad through Muncipal Commissioner v. Voltas Limited, (FB) and P.K. Ramachandran v. State of

Kerala and another, and Ashish Kumar Hazra v. Rubi Park Co-operative Housing Society Limited and others, , in support of the said contention. The contention for the learned Counsel for the respondent is that the respondent under bona fide belief that a petition under Order 9 Rule 13 is maintainable filed a petition under Order 9 Rule 13 CPC to set aside the ex parte decree and after dismissal of the petition by all the Courts, respondent preferred the appeal against the said decree with a delay condonation petition, and so the delay in preferring the appeal can be condoned under Section 14 of the Limitation Act. He further contended that since the learned Chief Judge exercised his discretion and condoned the delay, this Court should be slow in interfering with the said discretion and placed strong reliance on N. Balakrishnan v. M. Krishna Murthy, , and Sarojini Tea Company (P) Ltd. v. Collector of Dibrugarh, Assam and another, in support of his contention. He also relied on Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, where it is held that the Court should adopt liber approach in dealing with petitions for condonation of delay under Section 5 of Limitation Act.

5. The order under revision shows that the learned Chief Judge was under the impression that by the order dated 15-2-1999 in CRP No.468 of 1999 this Court gave an opportunity to the respondent to prefer an appeal and so he condoned the delay even without going into the question whether there is proper explanation for the delay or not. The learned Chief Judge in the order under revision, after referring to Rani Chowdary v. Lt.Col.Suraj Jit Chowdary (supra) and Sumera v. Madanlal and others (supra) stated as under in Paras 8 and 9.

"8. However, I am bound by the order of our High Court in CRP No.468 of 1999 rendered on 15-2-1999 in this matter. The order reads as follows:

"Both the Courts found no jurisdiction for setting aside the so-called ex parte decree and found no good reasons for continued absence of the petitioner or his Counsel even after the trial was over, number of opportunities were given by the trail Court before passing a decree of eviction, I see no illegality much less error of jurisdiction, calling for interference under Section 115 CPC.

The Civil Revision Petition is, therefore, dismissed. The order does not preclude the petitioner from questioning the decree in appeal and while considering the appeal the observations, if any, expressed by the learned Chief Judge, on the merits of the case shall not be taken into account by the appellant Court. I direct that the decree of eviction shall be kept in abeyance for a period of one month from today. No costs."

9. The learned Judge gave an opportunity to the petitioner/appellant to file an appeal. Hence the above petition is maintainable. When once it is held that the petition is maintainable, the time spent for prosecuting the petition under Order 9 Rule 13 CPC upto the High Court is to be excluded. Then the appeal is within time".

It is clear from the above that the learned Chief Judge did not go into the question whether the respondent is prevented by a sufficient cause in preferring the appeal.

6. The learned Counsel for the respondent contended that as the appeal is preferred within 30 days from the disposal of the CRP 468 of 1999, it cannot be said that there is a delay, probably, taking aid of the last sentence in the order dated 15-2-1999 in CRP 468 of 1999 reading "I direct that the decree of eviction shall be kept in abeyance for a period of one month from today". I am unable to agree with the said contention of the learned Counsel for the respondent. The observation made by the learned Chief Judge (sic High Court) while dismissing the CRP 468 of 1999 that the dismissal order does not preclude the respondent from questioning the decree in appeal by keeping the decree of eviction in abeyance for one month, cannot be construed as the Court conferring a right on the respondent to prefer appeal, after expiry of the period of limitation to prefer appeal even without the necessity of explaining the delay in preferring the appeal to the satisfaction of the Court, at any time within one month from the date of dismissal of the CRP No.468 of 1999. So, I am unable to agree with the finding of the learned Chief Judge that the appeal is in time.

7. As held in Jokam Reddy and others v. Gokar Mallaiah, and Ashish Kumar Hazra v. Rubi Park Co-operative

Housing Society Limited end others, (supra), relied on by the learned Counsel for the Revision Petitioner, it can be taken that the time taken till the disposal of CRP 468 of 1999 i.e., 15-2-1999 is explained by the respondent and time till 15-2-1999 can be excluded. Therefore, the respondent has to explain the delay caused from 15-2-1999 upto the date of filing of the appeal i.e., 12-3-1999 i.e., 24 days. The affidavit of the respondent does not disclose any reasons for the said delay. Except baldly stating that the delay in preferring the appeal is neither wilful nor intentional, no reason is mentioned in the affidavit of the respondent for the delay.

8. The Supreme Court in Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others (supra) and Sarojini Tea Company (P) Limited v. Collector of Dibrugarh, Assam and another (supra) relied on by the learned Counsel for respondent, held that a liberal approach should be adopted by Court while considering petitions for condonation of delay and that the Court should be slow in interfering with the discretion exercised by the Court for condoning the delay. Those are the cases where the delay was condoned after having been satisfied by the explanation given by the party regarding the cause for delay. In Collector, Land Acquisition v. Mst. Katiji, (supra), State of Jammu and Kashmir preferred the appeal four days beyond time. The Supreme Court taking note of the bureaucratic methodology imbued with the note making, file pushing etc., held that sufficient cause existed for the delay and allowed the appeal filed by the State of Jammu and Kashmir. In Sarojini Tea Company v. Collector, (supra), the Supreme Court refused to interfere with discretion exercised by the District Judge, who after considering the peculiar facts and circumstances of the case, condoned the delay. In that case the question was whether limitation starts from the date of knowledge of the order or the date of the order. So the said decisions have no application to the facts of this case. Similarly Smt. Laxmi Devi v. U.P. State and mother, , Gopal Doss v.

Nathulal, and R. Subbarayaen v. Ravaimani Ammal,

have no application to the facts of the case because in those cases also the Court was satisfied that the party gave satisfactory explanation for the delay. In P.K. Ramachwdran v. Stale of Kerala and another, the Supreme Court held:

"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".

and set aside the order condoning delay on the ground that the discretion exercised was neither proper nor judicious. In Balakrishnan v. M. Krishna Murthy, , the Supreme Court held

"Condonation of delay is 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 creterion. Some times delay of the shortest range, may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory", (underlining mine).

9. Initially respondent filed IA 968 of 1997 to set aside the decree passed in OS 5399 of 1994 against him. Revision petitioner contested that petition on the ground that the decree was not an ex parte decree and so the remedy of respondent is by way of appeal and not by way of a petition under Rule 13 of Order 9 CPC. The said petition was dismissed by the trial Court. Against the order of dismissal respondent preferred an appeal CMA 271 of 1997 before the Chief Judge which was also dismissed. Then he preferred CRP 468 of 1999 which was also dismissed at the stage of admission. Thereafter respondent filed an appeal against the decree with a petition for condonation of delay (i.e., the present petition). Thus it is clear that the respondent first opted for the remedy under Order 9, Rule 13 CPC and after having lost it in all the three Courts, in trying to take recourse to the remedy of appeal, which in fact is prohibited by the Supreme Court in Rani Chowdary v. Lt.Col. Suraj Jit Chowdary, . The said decision was followed in Sumera v. Madanlal and others, . In view of the said decisions the maintainability of the appeal itself is doubtful.

10. From the above conduct of the respondent, I am of the opinion that he is trying to prolong the proceedings to gain time and there are no bona fides in the petition. The learned Chief Judge, without going into the question as to whether respondent gave proper explanation of the delay or not condoned the delay only on the assumption that the order dated 15-2-1999 in CRP 468 of "1999 gave the respondent a right to prefer an appeal at any time of his choice without necessity of explaining the delay. Had the learned Chief Judge had taken into consideration the explanation offered by the respondent and came to a conclusion that the explanation is satisfactory or bona fide, then this Court should be slow in disturbing the said finding. In this case the learned Chief Judge even without considering as to when the appeal was presented after the dismissal of CRP No.468 of 1999 simply held " when once it is held that the petition is maintainable, the time spent for prosecuting the petition under Order 9, Rule 13 CPC upto the High Court is to be excluded. Then the appeal is within time". So I hold that the order under revision suffers from material irregularity and hence is liable to be set aside. The point is answered accordingly.

11. In the result, the revision is allowed. The order dated 19-3-1999 in IANo.719 of 1999 in AS(SR) No.3299 of 1999 on the file of the Court of the Chief Judge, City Civil Court, Hyderabad is set aside and the said IA No.719 of 1999 is dismissed. Parties are directed to bear their own costs.

12. After pronouncement of the order, the learned Counsel for the respondent sought time for the respondent vacating the premises. In the circumstances, I feel that time of three months for vacating the premises is reasonable. On condition of the respondent depositing the rents due in the Court by 5th of every month in advance, the decree shall not be executed by the revision petitioner.