Bathini Sambaiah Vs. Juluru Narayan

Bathini Sambaiah vs Juluru Narayan

Type Court Judgment Court Andhra Pradesh Decided Jan 30, 2002

~5 min read

https://sooperkanoon.com/case/431337

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/431337
Court: Andhra Pradesh High Court
Judge: V. Eswaraiah, J.
Decided On: Jan 30, 2002
Case Number: CRP No. 5047 of 2001
Subject: Limitation

Case Summary

AI-generated summary - not the official court judgment text.

Limitation - condonation of delay - Order 9 Rule 13 of Code of Civil Procedure, 1908 and Section 5 of Limitation Act, 1963 - application filed for condonation of delay - application allowed with condition that 1/4th of suit costs shall be deposited - held, such condition cannot be imposed while considering applicati...

Key legal issue: Limitation
Acts & sections: Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 13; Limitation Act, 1963 - Sections 5

Parties & Advocates

Appellant / Petitioner

Bathini Sambaiah

Advocate Barkat Lal Mandhani, Adv.

Respondent

Juluru Narayan

Advocate T.S. Anand, Adv.

Legal References

Acts: Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 13; Limitation Act, 1963 - Sections 5
Reported In: 2002(2)ALD636; 2002(3)ALT420

Excerpt

limitation - condonation of delay - order 9 rule 13 of code of civil procedure, 1908 and section 5 of limitation act, 1963 - application filed for condonation of delay - application allowed with condition that 1/4th of suit costs shall be deposited - held, such condition cannot be imposed while considering application under section 5. - all india services act, 1951. sections 32(c) (as amended by section 3 of amendment act, 2005] & 10 & general clauses act, 1897, section 6: [g.s. singhvi, cj, dr.g. yethirajulu, ramesh ranganathan, g.bhavani prasad, c.v. nagarjuna reddy, jj] exemption of building from applicability of provisions of act held, (per majority) section 32(c) of the act provides that the provisions of the act shall not apply to any building the rent of which as on the date of the commencement of the a.p. buildings ( lease, rent and eviction) control (amendment) act 2005 exceeds rs.3,500/- per month in the areas covered by the municipal corporations in the state and rs.2,000/- per month in other areas. there is nothing in the provisions of the amendment act which either expressly or by necessary implication suggests that the act is given retrospective operation. section 32 (c) of the amendment act is prospective in operation and this provision does not affect the proceedings pending as on the date of its coming into force before the civil courts or appellate, revisional or executing courts. these cases are required to be decided without reference to and applications of the provisions of the amendment act, 2005. undisputedly when the landlords filed their suits, the rent prescribed in the notification in force for the purpose of exempting buildings was rs.1,000/- and above. the landlords were therefore entitled under common law to approach the civil courts for seeking eviction of their tenants by availing the remedy of civil suits. in the absence of the amended provision being given retrospective operation, the crystallised rights of landlords on dates..........from his client, but still inclined to set aside the ex parte decree subject to the condition on payment of entire suit costs to test bona fides of the petitioner/defendant.3. the trial court taking into the past conduct of the petitioner and the facts and circumstances of the case, considered the contentions of the petitioner and in order to render substantial justice allowed the application filed under order 9, rule 13 cpc subject to payment of costs of the suit, which cannot be said as unreasonable or onerous term. the trial court is empowered to make such an order while setting aside the ex parte decree imposing such a term of depositing of the costs will be subject to final orders that may be passed in the original suit. costs were directed to be paid into the court alone. as the court below earlier imposed a condition of depositing 1/4th of the suit costs while considering the application to condone the delay under section 5 of the indian limitation act, the said order was set aside observing that such a condition cannot be imposed while considering the application under section 5 of the indian limitation act. as the suit is of the year 1996, imposing such a condition to deposit the suit costs, cannot be said thatit is an onerous or a term without jurisdiction. however, the petitioner deposited the suit costs as directed by the court below and the question has become only an academic one.4. in the circumstances, i do not see any merits to interfere with the order of the court below and the civil revision petition is accordingly dismissed. instead of keeping the costs amount in the current account it may be kept in a fixed deposit so as to enable it to accrue interest. accordingly, the trial court may take steps to deposit the amount of the suit costs in a fixed deposit in any nationalised bank. as the suit is of the year 1996, the same may be disposed of as expeditiously as possible preferably within six months from the date of receipt of a copy.

Full Judgment

ORDER

V. Eswaraiah, J.

1. This civil revision petition is filed against the order of the I Additional Senior Civil Judge, Warangal made in IA No. 840 of 2001 in OS No. 4/1996 dated 8-10-2001.

2. The application filed by the petitioner under Order 9, Rule 13 Code of Civil Procedure to set aside the ex parte decree dated 16-11-1999 is allowed by the learned Senior Civil Judge subject to the condition that the petitioner deposits the entire suit costs on or before 30-10-2001 or else the petition stands dismissed. There was a delay of 346 days in filing the application under Order 9, Rule 13 CPC. The petitioner filed an application under Section 5 of the Indian Limitation Act in 1A No.920 of 2000 to condone the delay of 346 days in filing the application under Order 9, Rule 13 CPC to set aside the ex parte decree. The Court below while allowing the said 1A No.920 of 2000 condoned the delay of 346 of days on a condition of depositing l/4th of the decretal amount including the suit costs by the petitioner/ defendant. Questioning the said order, the petitioner filed Civil Revision Petition No.2674 of 2001 and this Court while allowing the said revision petition on 28-6-2001 held that the application filed to set aside the ex parte decree shall be considered on different and distinct grounds. In the said application, the question to be considered while condoning the delay is whether there was any reasonable cause or excuse in not filing the application within 30 days of the date of ex parte decree under Section 5 of the Limitation Act. But whereas the reasons to consider to set aside ex parte decree is different with that of the application to consider the application to condone the delay. The trial Court while considering the application under Order 9, Rule 13 CPC held that that when the suit was posted for cross-examination of the plaintiff by the defendant neither the defendant nor his Counsel appeared before the Court. The plaintiff examined himself as PW1 in chief on 2-11-1999 and at the request of the Counsel for the defendant cross-examination was deferred and it was adjourned to 11-11-1999 and again on 11-11-1999 the Counsel did not representon the ground that he was not doing well, the suit was adjourned to 15-11-1999 for cross-examination of PW1. On 15-11-1999, the Counsel appearing for the defendant reported no instructions. In view of the said representation, the defendant called absent and he was set ex parte and the suit was adjourned for 16-11-1999 for consideration. When the case was called on 16-11-1999, none appeared on behalf of the defendant and there was no representation on his behalf, hence, the Court below passed ex parte decree after taking into consideration the entire material papers available on record. The trial Court held that the defendant failed to establish sufficient cause, which prevented him from appearing either to seek adjournment or seek instructions from his client, but still inclined to set aside the ex parte decree subject to the condition on payment of entire suit costs to test bona fides of the petitioner/defendant.

3. The trial Court taking into the past conduct of the petitioner and the facts and circumstances of the case, considered the contentions of the petitioner and in order to render substantial justice allowed the application filed under Order 9, Rule 13 CPC subject to payment of costs of the suit, which cannot be said as unreasonable or onerous term. The trial Court is empowered to make such an order while setting aside the ex parte decree imposing such a term of depositing of the costs will be subject to final orders that may be passed in the original suit. Costs were directed to be paid into the Court alone. As the Court below earlier imposed a condition of depositing 1/4th of the suit costs while considering the application to condone the delay under Section 5 of the Indian Limitation Act, the said order was set aside observing that such a condition cannot be imposed while considering the application under Section 5 of the Indian Limitation Act. As the suit is of the year 1996, imposing such a condition to deposit the suit costs, cannot be said thatit is an onerous or a term without jurisdiction. However, the petitioner deposited the suit costs as directed by the Court below and the question has become only an academic one.

4. In the circumstances, I do not see any merits to interfere with the order of the Court below and the civil revision petition is accordingly dismissed. Instead of keeping the costs amount in the current account it may be kept in a fixed deposit so as to enable it to accrue interest. Accordingly, the trial Court may take steps to deposit the amount of the suit costs in a fixed deposit in any nationalised bank. As the suit is of the year 1996, the same may be disposed of as expeditiously as possible preferably within six months from the date of receipt of a copy.

Same Court & Year Andhra Pradesh · 2002 Same Parties Bathini Sambaiah vs Juluru Narayan Same Subject Limitation Same Judge V. Eswaraiah, J. Acts & Sections Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 13; Limi...

Limitation